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Case number 25-5037 at L.

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Kathy Harris, in her personal capacity and in her official capacity as member of the Merit Systems Protection Board, versus Scott the Saint, in his official capacity as Secretary of the Treasury at all, at balance, and case number 25-5057, Queenie A. Wilcox versus Donald J. Trump in his official capacity as President of the United States, and Marvin E. Kaplan in his official capacity as Chairman of the National Labor Relations Board, at balance.

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Mr Graver for the balance.

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Mr Zelinski for happily Kathy Harris.

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Mr Gupta for happily Queenie Wilcox.

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Mr Graver, come on up.

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Morning.

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Morning.

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Judge Katz's may please the court.

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Harry Graver for the United States.

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This case is controlled by Supreme Court precedent.

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And under that precedent, the government wins for two independent reasons.

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First, as to the merits, the Supreme Court has made clear that if an executive agency wields substantial executive power, then the heads of that agency must be removable at will.

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As Justice Kavanaugh recognized and as Judge Walker has explained, that describes the NLRB and the MSPB to a T. Second, as to remedy, the Supreme Court has been equally clear

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federal courts cannot issue an injunction that forces the reinstatement of a federal officer because the injunctions below do just that, they are improper.

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Now, for their part, my friends offer two main counter arguments for why their claims are not foreclosed by binding Supreme Court precedent, but I don't think either works.

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On the merits, their main point is that the NLRB, the MSPB are primarily adjudicatory bodies, primarily adjudicatory bodies.

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That is true.

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That is a woefully incomplete answer.

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Article two does not just care about how an agency wields executive power.

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It cares.

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Indeed, it cares most about how much power an agency wields.

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Is it your position that any agency that is housed within the executive branch wields substantial executive power and therefore must be subject to at-will removal?

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Yeah, I think that the Celia law test is for traditional... Is it yes or no question?

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Which is the first clause of that?

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No, the question was, is it your position that all agencies housed within the executive branch wield substantial executive power such that they must be subject to at-will removal?

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Yes.

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So is there any agency

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Currently an independent agency that would be allowed to be subject to for-cause removal?

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Any agency?

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I'm not sure.

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I mean, I think that I want to answer the question directly.

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One brief preface is that I do think that the court's injunction in free enterprise and serial law to take each case as it comes is an important one.

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You look at the agency that's before you, each presents its own questions.

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Each might have its own history.

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But off the top of your head, you can't think of any independent agency that currently could be subject to for-cause removal?

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So yeah, without taking a definitive position, I don't think it's a null set.

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My colleague last time he was up here said something like ACUS, an advisory body like ACUS could count.

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I think there's something to recommend for that.

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The real test is whether you meet the yardstick of the 1935 FTC.

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Another example like that, something that really looks like a judicial and legislative aid.

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So if I could ask you, it seems then that your position is that virtually any independent agency that currently exists

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has to be reconfigured.

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We can't have for-cause removal restrictions for them.

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And so I just want you to put aside the case law and the historical evidence for a moment and think about this.

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Your position is we're not allowed to have independent agencies in this country.

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Even if they can be beneficial, like the Federal Reserve, there are good reasons to have them.

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But our government is constitutionally not allowed to have independent agencies.

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Can you explain why that's a good way to run a government?

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Why would the framers have wanted to put this constraint on our government?

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So two points, Judge Pan.

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First, our position is simply the position from Celia Law.

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So, and I understand I'm asking just to put aside all that for a moment.

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Okay.

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So just before, yeah, I don't know if it necessarily cuts.

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Why is this a good way to run a government?

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Why would the framers have intended for this to be the way we must run our government as a constitutional matter?

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Because the way in which the executive branch should work turns on accountability.

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That is the essence of article two.

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It is a unitary, energetic executive that answers to the people.

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And the only way in which the executive branch can be answerable to the people is if the president is answerable to the people.

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The only way that works is if the executive agencies that wield his power answer to him.

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And I believe your position is that it's a harm.

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It's going to harm liberty if we don't, I guess, look at the separation of powers this way.

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Is that your position?

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Yeah, I think that if the court departs from Article II's design, that inflicts a constitutional harm on the country.

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OK, so we've had independent agencies for over 90 years now, at least over 90 years.

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There's about 30 of them or more currently outstanding.

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Can you just give me an example of how our country has been harmed by the existence of these independent agencies?

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I think that the harm is the blurring of the lines of accountability.

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that takes place.

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That is the fundamental problem.

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I mean, a good example might be it's going out.

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So that's a harm in and of itself.

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That's like a paper harm you're talking about.

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So here's at least one.

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I'm asking, is there an actual tangible harm to our country from having independent agencies?

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Here's at least maybe one example that comes to mind.

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There's a whole kerfuffle in the last administration about whether or not we're going to ban gas stoves.

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And the CPSC, an independent agency, was contemplating banning gas stoves.

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Huge political blowback to it.

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But the president was able to turn around and say, hey, not my problem.

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That's a policy judgment made by an independent agency.

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That blurring of the line of accountability is incompatible with our political system.

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That's exactly the logic of Celia Law, of Collins, of Arthrex, where we need a system of accountability in place for the presidency to work.

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And again, this is- On accountability though.

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At the time of the founding, the president wasn't accountable to the voters, was he?

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Because at that point, the president was selected by the Electoral College, and the Constitution said that all the states can decide who can be the electors of the Electoral College.

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And many states just had the state legislators choose the electors.

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So that's not accountability today.

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It's people all the way down.

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I mean, the states ultimately were responsive to the people.

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They chose how to choose their electors.

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Everyone chose popular will for good reason.

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And I would just say indirect accountability is OK, then.

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I think that at day's end, it's the government's accountability to the people.

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And here's, I guess, the point, too.

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Even if regional minds can differ on the history, the Supreme Court, I think, has definitively said how to understand it is that the way in which the framers understood the presidency

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And the reason that it gave the president and the president alone the entire executive power, this is the entire point that Judge Walker was recognizing, but was mentioning in his opinion, is that where it divided power elsewhere, it gave the presidency unitary power, the entire executive power, because the president alone was the only person in the country, along with the vice president, who was answerable to the people, who stood for a single election.

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So I think the line between the president and the people

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at least under the Supreme Court's existing jurisprudence, needs to be clear.

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There must be a clear chain of command, and at-will removal facilitates that.

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When the lines of accountability get blurred, the system starts to fall.

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I just want to understand how the system starts to fall apart.

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Because when you tell me lines get blurred, that's very abstract.

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And we're talking about real agencies that affect real people here.

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So I want to understand how it is that this is harmful.

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Because it seems to me, we have a lot of amicus briefs, particularly about the Fed and other agencies, that it would be quite harmful to make these independent agencies subject to presidential control.

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There's going to be a lot of effects on real people and real adjudication.

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It's harmful because it disables the will of the people.

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When the people elect a president, they elect him to wield the executive power consistent with that mandate.

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So I'll give a good example.

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One of the agencies before you.

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The voters know that they're independent agencies.

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So they're not voting on who's president based on what the Fed is doing.

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I think that conflicts directly with the logic of free enterprise and serial law.

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It's that when the executive branch does important work, that's the words from Collins.

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When the executive branch does important work, the president answers to the people.

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for that work.

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It is not as if the electorate, you know, parses between independence or non-independence or quasi-independence, something like that.

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The Supreme Court has made clear that when an agency wields executive power, that has to be under our constitutional system attributable to the president.

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And the only way in which that works is if the president can hold the agency heads to account because they are the ones wielding his power.

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A great example is one of the agencies before you.

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The Supreme Court has described again and again the NLRB

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as the agency that has the primary responsibility for setting and developing national labor policy for the country.

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That is a huge deal, something that voters care about, constituency cares about, and what the labor policy is for the executive branch is something that the president and the president alone must be accountable for.

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Can I ask you about the breadth of your theory?

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You said just

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purely adjudicatory authority is sufficient to constitute executive power for these purposes.

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So we have to, I totally understand how you get from modern precedents, right?

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The vesting clauses create three buckets and this

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can't go in bucket number one or bucket number three, so it has to go in bucket number two, and QED, we're done, right?

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That's your position.

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But how do we reconcile that with Humphreys?

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I mean, you said Supreme Court precedent, we have to deal with two, not just CELA, but also Humphreys.

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And if simple executive,

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adjudication were administrative adjudication were executive power in this sense.

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Neither the 1935 FTC nor the War Claims Commission in Wiener would survive that test.

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Right.

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So I think that the way in which what's left of Humphreys.

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Yeah, I think the way to sort of square

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There might be a tension between different lines.

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Yeah, a little bit.

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Sure.

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It's exactly what Judge Walker said, is that the yardstick is the 1935 FTC.

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I think that's the way in which it works.

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The way in which Collins and Celia Law square with the earlier precedent is that the field of doubt contemplated at the end of Humphreys is gone.

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Once you clear the threshold of the 1935 FTC, once the executive power, whatever it may be, is greater than that, the agency heads must be removed

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That respects the core of Humphreys for at least present purposes.

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But once you go beyond that, it's a degree of executive power that triggers the need for immediate accountability.

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But the 1935 FTC and the War Claims Commission both could do administrative adjudication.

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Absolutely.

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So that doesn't distinguish on the criterion you just laid out.

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Yeah, I think there's also an element of a difference of degree.

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So it, I think, is a tremendous mistake to read Humphreys and Wiener as blessing all adjudication for all time.

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You look to the range of policy outcomes and policymaking ability that the adjudication is able to effectuate.

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Something to add to the equation.

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I mean, that's a great answer for Wiener.

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I'm not sure it's an answer to Humphreys.

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Well, I think- Unfair.

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unfair methods of competition is akin to unfair labor practices, wide open statutory criterion that invites policymaking.

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Right.

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I think that's the exact argument Justice Kagan made in footnote 10 in her dissent, which was that, hey, the FTC did a ton of stuff that doesn't really seem to be in Humphreys itself.

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What do we make of that?

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Can't we read Humphreys really broadly?

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And that's the entire import of footnote four of Celia Law.

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which is that that opinion reaches no further than the powers considered at the time, the powers that gave rise to the constitutional reasoning in that part of the opinion.

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And there it was that the agency was legislative and judicial aid.

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That was the key focus.

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And the specific part of Humphrey's, you're right, says section six, I think, make reports to Congress,

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quasi-legislative, Section 7 maybe, be an adjunct to the district court, recommending remedies in antitrust cases, that's quasi-judicial.

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That's easy, but they do have a reference in the opinion to filling out the details of

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the controlling standard, which is this open-ended unfair method of competition thing.

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Yeah.

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So you could read Humphrey's as having considered the power to do administrative adjudication.

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So I think that even if you do.

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For purposes of footnote four or whatever, right?

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So even if you do, I think that's not necessarily the best reading of Humphreys, but putting that to the side, it's close, but it's sort of, it's sort of in there.

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I agree.

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So even putting, I think that all to the side, again, I don't think Humphreys blesses all adjudication for all time.

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It still depends on the type of power that the agency wields.

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And this is, I think the key, a key point from serial law is you look at also not just the ability of an agency to interpret and implement a federal statute, which is the essence of executive power.

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It's how much can they do with

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And a key piece of that turns on remedies as well.

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So again, the FTC, even that piece from Humphrey's, had a mildly negative power to issue a cease and desist order, and that alone.

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What the court emphasized in Celia Law is when you have the ability to enforce policymaking, the ability to interpret and implement a statute through far-reaching remedies, that starts to become substantial executive power that is different in kind.

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So a good example is both the agencies before you have the ability to obtain monetary relief.

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And Celia Law said already that pulls you outside the mold

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Humphreys being able to participate in the rulemaking process that pulls you outside the mold of Humphreys, administering an entire federal scheme like the NLRB does with union elections.

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That's a little more, I mean, that's a lot more fine grain than just saying they can do adjudication and therefore we're done.

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Well, I think that that can't be right because on that logic, you can turn virtually any cabinet agency into a multi-member commission.

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it does adjudication, AG, HHS, HUD, EPA, what have you, and say, well, never mind, Article II has no problem.

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And I think- Start at the other end of the spectrum.

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Your position is the president is constitutionally entitled to remove at will members of the Court of Appeals for the Armed Forces.

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So I think that, again, nobody thinks they have an iota of policymaking, right?

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They don't invent 12 part tests.

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They do exactly what we do.

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They construe text.

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They find facts.

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Right.

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So I think, and all that's before you is two different agencies.

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And again, I think there's the preface to someone here is that the point from free enterprise is a sound one.

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is you take the agencies before you.

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It's just to bring on point, it's not our test.

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What we're repeating is verbatim what the Chief Justice said in Celia Law.

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And what the lower courts- We have to harmonize both cases.

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I understand.

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But the way in which I think it addresses the concern you're reaching with Article I courts, Article IV courts, things like that, is Celia Law's most natural test is for traditional executive agencies.

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And to the extent it doesn't map on necessarily one-to-one with something like court.

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What's your answer on the CAEF?

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So I think it's a different agency that presents its own history, presents its own considerations.

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I point to the Supreme Court's decision.

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I think that's really important because I think Judge Casas is raising a really important

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question about adjudicative functions.

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And it's really important to understand what your position is about these courts that are housed within the executive branch.

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So our general legal position, the principle to apply in cases is that the fact that the trappings of the agency look judicial.

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The question is, can they be subject to

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Yeah, so I don't have a concrete position on agencies that are not before you.

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But the way in which to think about the question.

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How can you not have a position on that when your position from my first question was you think that virtually any agency within the executive branch has to be subject to abl.

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But those are, I think, that's the default and those are the principles to start with.

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And the way in which to think about.

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So is your position then that these courts that are housed within the executive branch, they have to be subject to abl removal?

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So here's the key distinction.

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as I was saying before, is that cellular law, as it frames its test and as Judge Walker was emphasizing this point, is most naturally applicable applies one-to-one with executive agencies, those that definitely wield core executive power.

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All I'm saying is that there's distinct analytical questions presented that come with things like Article I courts.

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We're agreeing with you and we're asking, what is the government's position on how this would apply to the courts that are housed within the executive branch?

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So again, we don't have a definitive position on agencies not before you.

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on agencies not before you that are outside, that are not traditional regulatory agencies.

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So the reason you don't have to position that is you can see that they might be allowed to have for cause removal protections because they're adjudicative.

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It's not a concession one way or another.

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The basic point is that you think about it in terms of, is this agency first of all exercising executive power?

[00:18:49] Speaker 01:
But the reason you're not willing to take a stand on this seems to be you're entertaining the possibility

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that they are allowed to have for cause removal, even though they're within the executive branch.

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Well, I'm saying is that the executive branch or the federal government as a whole is large and sprawling, many different agencies, their own different histories, their own different idiosyncrasies.

[00:19:08] Speaker 01:
But you're taking a position that is sweeping.

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You're taking a position that says any agency that is housed within the executive branch is exercising substantial executive power and has to be subject to a traditional regulatory agency.

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And I would point to I know a lot of things been spilled on this, something that I would direct you to.

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is a court's decision in Arthrex.

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When a traditional regulatory agency, even if it takes the form of adjudication, rulemaking, what have you, is wielding core executive power, then the analytical question for you as a lower court

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Is is that is that executive power substantial, the only point that I'm making is that you don't need to bite off anything more than that, because it just distinct questions come with article one courts after fray tag for instance, those are not treated as executive agency.

[00:19:50] Speaker 01:
I think we need to bite off more than that, because we have to understand the implications of what you're arguing.

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And it's very important to understand how the adjudicatory function plays into this.

[00:20:01] Speaker 01:
And the courts, as Judge Katz has said, are the clearest example of that.

[00:20:05] Speaker 01:
And you're not willing to take a position on that?

[00:20:07] Speaker 02:
I think the point would have more force before Celia law.

[00:20:12] Speaker 02:
So for instance, if the government was coming before you and say, hey, let's say that the law should be this, the test should be this.

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I think then it's a fair pushback to say, well, before we adopt that test, where might it lead?

[00:20:24] Speaker 02:
Our point is much more modest.

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Celia law has already told you what the test is for agencies like the ones before you.

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So you should take Celia law at its word and apply the test that the court already handed down.

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And I'm not sad.

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I don't know where this road leads.

[00:20:37] Speaker 06:
So you don't have a position on the CAV?

[00:20:41] Speaker 02:
Correct.

[00:20:41] Speaker 06:
I assume by the same logic, you don't have a position on the tax court?

[00:20:47] Speaker 02:
No, we have no formal position on the tax court either.

[00:20:49] Speaker 06:
OK, what about purely

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adjudicatory agencies in a split model within the executive branch, like FIMSHRC and OSHRC and the benefits review.

[00:21:06] Speaker 06:
There's a separate entity that does the rulemaking and the prosecution, and they're just an adjudicator.

[00:21:14] Speaker 02:
Yeah, so I think, I'm not as familiar with all the acronyms yet in our government, but I think that so long as you're a member of an executive agency,

[00:21:23] Speaker 02:
as long as you're engaged in adjudication.

[00:21:25] Speaker 02:
This is the square holding of Arthrex.

[00:21:26] Speaker 02:
You're exercising executive power.

[00:21:28] Speaker 02:
Now again, when there's governmental entities that don't fit that mold.

[00:21:32] Speaker 06:
If that's true, then all the executive agencies are on the seal of laws side of the line and the legislative courts are a big question mark.

[00:21:46] Speaker 06:
So the only thing you're willing to definitively put in the Humphrey's bucket

[00:21:54] Speaker 06:
is, I don't know, ACUS or some board that runs the Kennedy Center or something.

[00:22:00] Speaker 06:
I mean, is that really a plausible account of the part of SELA law that says Humphrey's executor is still good law?

[00:22:10] Speaker 06:
Yes.

[00:22:11] Speaker 06:
No, it runs the Kennedy Center advisory, it governs the Kennedy Center advisory.

[00:22:16] Speaker 02:
Yeah, no, no, no shot to the Kennedy, but yes, I think, yeah.

[00:22:20] Speaker 02:
That is, again, for all the reasons that Judge Walker detailed.

[00:22:23] Speaker 02:
is that Humphrey's reaches no further.

[00:22:25] Speaker 02:
And again, not our test.

[00:22:27] Speaker 02:
This is what the Supreme Court said, is that Humphrey's executor, as the court understood the FTC at the time, is the outermost bound that we are willing to tolerate, the outermost bound that we are willing to tolerate.

[00:22:38] Speaker 02:
And the way in which you figure out where that bound is set, what footnote four says is you look at the powers that were considered.

[00:22:44] Speaker 02:
So the yardstick remains the 1935 FTC, as understood by the court then, which is at bottom a legislative and judicial aid and nothing further.

[00:22:54] Speaker 06:
Suppose I think you might need more than just the power to do adjudication.

[00:23:05] Speaker 06:
I mean, one point you cite for the NLRB, which cuts in your favor, is rulemaking power.

[00:23:14] Speaker 06:
But you don't cite that for the MSPB.

[00:23:18] Speaker 06:
So can you tell me what is your position on the extent to which

[00:23:24] Speaker 06:
The MSPB does or doesn't have rulemaking power.

[00:23:30] Speaker 02:
So it participates in the rulemaking process with veto.

[00:23:33] Speaker 02:
So it can veto OPM's rules and regulations under certain circumstances.

[00:23:37] Speaker 02:
So it has a role in rulemaking, a role in policy setting in a negative sense, which is different in kind from the 1935 FTC.

[00:23:44] Speaker 06:
But it can pass affirmative rules.

[00:23:47] Speaker 06:
at least with respect to removal of ALJs.

[00:23:53] Speaker 06:
That's true.

[00:23:54] Speaker 06:
The federal circuit has said those are legislative rules.

[00:23:59] Speaker 02:
Correct.

[00:24:00] Speaker 02:
I think that's a good example.

[00:24:01] Speaker 02:
I mean, the key piece of this, and the ALJ example is a good one, which is in kind of contextualizing the power that the MSPB wields.

[00:24:10] Speaker 02:
In interpreting and implementing the statutes that the MSPB is charged with implementing, it is fundamentally providing content to the civil service laws for the executive branch, which is at bottom of policy making function binding on the executive branch.

[00:24:25] Speaker 02:
What is good cause for an ALJ is a fundamental political judgment.

[00:24:29] Speaker 02:
Whether a disciplinary action is done for the efficiency of the service, which is the bread and butter of the MSPB,

[00:24:34] Speaker 02:
is a fundamental policymaking judgment that it can then impose upon the executive branch.

[00:24:39] Speaker 02:
That is no doubt incredibly important work for which the agency then needs to be accountable to the president.

[00:24:45] Speaker 02:
Because again, the

[00:24:47] Speaker 02:
It is the MSPB, which the one point I want to make is that the MSPB exercises the most fundamental of executive power.

[00:24:55] Speaker 02:
And James Madison said, if anything is by its nature as executive, it's the power to appoint, oversee, and supervise those who execute the laws.

[00:25:03] Speaker 02:
The MSPB supervises the supervision of the executive branch.

[00:25:06] Speaker 02:
That is at its core, executive power, for which the president must be able to hold the agency to account.

[00:25:15] Speaker 06:
of rulemaking power.

[00:25:17] Speaker 06:
There are two specialized grants.

[00:25:20] Speaker 06:
One is in 7701, which just seems to be secondary conduct for the agency.

[00:25:28] Speaker 06:
The one I mentioned on ALJs is 1305, clearly legislative, but kind of a very specific area.

[00:25:37] Speaker 06:
Do they have in 1204H, you don't cite it, but does that confer on the MSPB just power generally to make legislative rules about what constitutes a prohibited personnel practice?

[00:25:53] Speaker 06:
I think that's the key concept.

[00:25:56] Speaker 02:
Right.

[00:25:56] Speaker 02:
I don't have 1204A right in front of me, but I think that my understanding is the main way in which they provide content to those civil service losses through the adjudicative process.

[00:26:05] Speaker 06:
I couldn't find many regs.

[00:26:08] Speaker 02:
Right.

[00:26:08] Speaker 06:
Substantive regs.

[00:26:09] Speaker 06:
I couldn't either.

[00:26:10] Speaker 06:
Other than the ALJ ones.

[00:26:12] Speaker 02:
Right.

[00:26:13] Speaker 02:
But I think that.

[00:26:14] Speaker 02:
It's not to say they don't have the power, but.

[00:26:17] Speaker 02:
I think, yeah.

[00:26:18] Speaker 02:
I can figure it out.

[00:26:19] Speaker 02:
I think it landed in the same place.

[00:26:20] Speaker 02:
I think that it's mostly fleshed out via adjudication.

[00:26:22] Speaker 02:
But again, I think our basic submission, that the constitutional analysis here, Article II, doesn't turn on the chennery question that agencies have.

[00:26:31] Speaker 02:
And I think that whether it's rulemaking or adjudication at day's end,

[00:26:35] Speaker 02:
One thing.

[00:26:35] Speaker 06:
What about another way to get beyond just purely administrative adjudication is to look at litigating authority.

[00:26:47] Speaker 06:
That's another one.

[00:26:48] Speaker 06:
I think I understand the NLRB.

[00:26:52] Speaker 06:
little better than the MSPB.

[00:26:54] Speaker 06:
So help me out with that.

[00:26:57] Speaker 06:
MSPB, there's some set of cases in which they have litigating authority in district court and some set of cases in which they are the named respondent with litigating authority in the federal circuit.

[00:27:16] Speaker 06:
Can you help me as district court is

[00:27:20] Speaker 06:
someone invoke like an employee invokes axon to do an end run around channeling and challenges something about the board.

[00:27:30] Speaker 02:
Yeah, a good example.

[00:27:32] Speaker 02:
I think the case we're talking about.

[00:27:35] Speaker 02:
Yeah, independent litigating authority also in the court of appeals, just not the Supreme Court.

[00:27:38] Speaker 02:
And a good example is a recent court case out of the Ninth Circuit, which related to exhaustion, what has to go before the MSPB.

[00:27:46] Speaker 02:
It was a good example, because you had the Department of Justice taking one position and the MSPB taking another as to what the executive branch's view of federal law is.

[00:27:56] Speaker 02:
I think that the reason Buckley recognized that independent litigating authority, the ability to vindicate public rights in federal court, needs to be understood as executive.

[00:28:04] Speaker 02:
is I think it illustrates the accountability point in stark measure.

[00:28:08] Speaker 02:
Here, before a single court, you have the executive talking outside both sides of its mouth.

[00:28:13] Speaker 02:
And that just cannot work, I think, within our system.

[00:28:16] Speaker 02:
And that is why independent litigating authority is so important.

[00:28:19] Speaker 06:
In the bread and butter MSPB case, which is they're sitting in an appellate capacity, they uphold an adverse personnel decision, and the aggrieved employee goes to the federal circuit.

[00:28:35] Speaker 06:
That's most of what they do.

[00:28:37] Speaker 06:
In that situation, the aggrieved employee is the petitioner and the employing agency is the respondent.

[00:28:44] Speaker 06:
And the MSPB is like a district court judge here.

[00:28:48] Speaker 06:
We don't have the district court at the podium defending their decision.

[00:28:52] Speaker 06:
They're just the neutral adjudicator.

[00:28:54] Speaker 02:
Yeah, my understanding is they can participate.

[00:28:56] Speaker 02:
So for instance, the Ninth Circuit case I mentioned, they participated as an amicus, took argument time, and presented their view of the law.

[00:29:02] Speaker 02:
And again, the statutory term

[00:29:04] Speaker 02:
is phrased very broadly.

[00:29:05] Speaker 02:
So you can participate in any civil action so long as it implicates something like that, the functions of the MSPB.

[00:29:11] Speaker 02:
And that term has been used broadly for the MSPB to be able to articulate its view of federal law in federal court.

[00:29:19] Speaker 02:
If I may, for a moment, turn to Remedy.

[00:29:21] Speaker 01:
Any other questions on that?

[00:29:24] Speaker 01:
Yes.

[00:29:24] Speaker 01:
Can you talk about the Federal Reserve?

[00:29:26] Speaker 01:
What is your position about whether your interpretation would allow the president to remove the chairman and the governors of the Federal

[00:29:33] Speaker 02:
So again, the Federal Reserve, I think, presents a distinct constitutional question not before this court.

[00:29:38] Speaker 01:
Well, I'm sorry.

[00:29:39] Speaker 01:
You keep saying things are not before this court.

[00:29:41] Speaker 01:
But you're advocating a position that's going to have implications.

[00:29:45] Speaker 01:
And that's really going to be an important part of how we decide this case.

[00:29:48] Speaker 01:
And so you coming here and not being willing to take positions on other agencies is not helpful to the court.

[00:29:53] Speaker 01:
I think the premise is wrong.

[00:29:55] Speaker 01:
We need to understand how this is going to work.

[00:29:57] Speaker 02:
I think the premise, we would quibble with the premise.

[00:30:00] Speaker 02:
I think the whole point.

[00:30:02] Speaker 02:
As I understand the force of the question is the test in Celia law will necessarily apply in full force to other agencies.

[00:30:10] Speaker 01:
The point that we're making is not what is the government's position on how your interpretation should guide how we apply this test that you're proposing.

[00:30:20] Speaker 01:
to the Federal Reserve because the Federal Reserve does promulgate regulations.

[00:30:25] Speaker 01:
It has examinations.

[00:30:27] Speaker 01:
It brings enforcement actions.

[00:30:28] Speaker 01:
It regulates a very large part of our economy, the banking system.

[00:30:32] Speaker 01:
And so it's important for us to understand what you're asking for.

[00:30:36] Speaker 02:
So what we're asking for.

[00:30:37] Speaker 02:
Again, all we're asking for is for you to apply the test and seal your law to the traditional regulatory agencies before you.

[00:30:43] Speaker 02:
That's a distinct question.

[00:30:44] Speaker 02:
We have not taken a position on how to exactly apply that to the Fed, because that's a distinct agency that presents its own questions.

[00:30:49] Speaker 02:
Why might it be different?

[00:30:51] Speaker 02:
So it might be different for all the reasons that the Chief Justice, Justice Alito, and Justice Kavanaugh said it was different.

[00:30:56] Speaker 02:
It's because the Fed has a unique history.

[00:30:58] Speaker 02:
What I mean by unique history is that it's the one independent agency that I think has a colorable claim to a historical analog that dates to the founding

[00:31:07] Speaker 02:
And I think the Chamber of Commerce brief does a good job with this, where it traces the idea that monetary policy might not be considered a traditional exercise of executive power in the same way as the executive power that is clearly before this court now.

[00:31:21] Speaker 02:
So all I have to do, I think, for present purposes, again, as a lower court faithfully applying Celia law, is to take the agencies before you under the tests that the Supreme Court told you to apply.

[00:31:30] Speaker 02:
And again, taking the note from both the Chief Justice, Justice Alito and Justice Kavanaugh,

[00:31:36] Speaker 02:
that the fed's historical status presents a distinct constitutional question not presented here.

[00:31:40] Speaker 02:
So our position is nothing here dictates what happens to the fed full stop.

[00:31:45] Speaker 06:
It just seems like the fed clearly satisfy the rule statement from SELA that you want us to apply, unless we're just making up ad hoc, historically based exceptions.

[00:32:01] Speaker 02:
And I think that

[00:32:02] Speaker 02:
What happens with the Fed and the questions that come with the Fed are distinct questions for another day because of its unique historical status.

[00:32:08] Speaker 02:
I take the point.

[00:32:09] Speaker 02:
But again, it has a unique claim to history.

[00:32:11] Speaker 02:
It may have an exception.

[00:32:12] Speaker 02:
Justice Alito phrased it, sanctioned by history, that no other agency can necessarily claim.

[00:32:18] Speaker 02:
And again, the point here is not.

[00:32:20] Speaker 01:
The purpose of oral argument is for us to be able to probe your position and to better understand the implications of what you're arguing and what you're

[00:32:28] Speaker 01:
asking us to rule and for you to come in here and not be willing to take a position on how your position would affect article one courts that are housed within the executive branch and the federal reserve.

[00:32:41] Speaker 01:
These are really important questions and I just don't see how it's helpful for you to come in here and say you don't have a position on that.

[00:32:47] Speaker 02:
Can I take a crack at just where the I think the departure might be?

[00:32:51] Speaker 01:
Yes please.

[00:32:52] Speaker 02:
So the test from Celia

[00:32:54] Speaker 02:
Test from Celia Law is, is the agency before you wield substantial executive power?

[00:33:00] Speaker 02:
The wrinkles that is in here is both with the Fed and with Article I courts, and for that matter, Article IV courts, is that the Supreme Court has said, or at least implied, that those agencies might not exercise traditional executive power.

[00:33:15] Speaker 02:
So think of Celia Law as a two-step inquiry.

[00:33:17] Speaker 01:
Is the agency before you?

[00:33:18] Speaker 01:
The reason why the courts are important is because if you're saying that they don't

[00:33:22] Speaker 01:
exercise executive power, then maybe the MSPB and the NLRB don't either.

[00:33:26] Speaker 01:
They're also adjudicatory.

[00:33:27] Speaker 01:
So I think you're not letting us make that analysis if you don't give us your position on the courts.

[00:33:31] Speaker 02:
So the difference is that everyone agrees, and this is footnote seven from even Justice Kagan's dissent, that when a traditional regulatory agency within the executive branch exercises governmental power, it must be executive.

[00:33:44] Speaker 02:
And it's different in kind.

[00:33:46] Speaker 02:
that is different in terms of the appointments clause.

[00:33:52] Speaker 02:
Those are all clearly in the language of the departments.

[00:33:54] Speaker 01:
So you agree that the Fed exercises traditional executive power?

[00:33:56] Speaker 02:
The difference with the Fed.

[00:33:58] Speaker 01:
Does it exercise the power?

[00:34:00] Speaker 01:
Even if there are other reasons to distinguish it, it exercises traditional executive power?

[00:34:03] Speaker 02:
With respect to monetary policy, the core function of the Fed, we have not taken a position because it's a hard historical question for all of the reasons, again, that those justices recognized Judge Oldham did too.

[00:34:13] Speaker 01:
So it does.

[00:34:14] Speaker 02:
It does exercise power.

[00:34:17] Speaker 02:
not take a position with it.

[00:34:18] Speaker 02:
There's two pieces here.

[00:34:19] Speaker 01:
But how can you not take a position on it when the Fed promulgates regulations and investigates and brings enforcement actions?

[00:34:27] Speaker 01:
You don't think that's executive?

[00:34:29] Speaker 01:
Those actual functions are not executive?

[00:34:32] Speaker 02:
There's a few pieces, I think, to the analysis.

[00:34:34] Speaker 02:
The first is, as I understand also.

[00:34:36] Speaker 01:
Can you just give me a yes or no answer on is promulgating regulations executive?

[00:34:41] Speaker 02:
When a traditional regulatory agency promulgates regulations, that is an exercise of executive power.

[00:34:46] Speaker 01:
Okay.

[00:34:47] Speaker 01:
And bring enforcement actions.

[00:34:48] Speaker 01:
That's executive.

[00:34:50] Speaker 02:
Again, when it's done by an executive agency, that is executive power.

[00:34:54] Speaker 01:
Great.

[00:34:55] Speaker 01:
And the Fed is an executive agency.

[00:34:57] Speaker 02:
But again, the key piece of the analysis, and this is even in Humphreys too, if you look at the key footnote in Humphreys, is the nature of the agency is usually defined in terms of its predominant power.

[00:35:05] Speaker 02:
And when

[00:35:06] Speaker 02:
monetary policy, for instance, is the defining trade of the Fed, that again presents a distinct question when the main bread and butter thing of which it does, monetary policy is not necessarily an application of executive power.

[00:35:17] Speaker 02:
Again, we're not taking a position, but it's a distinct step one question.

[00:35:22] Speaker 01:
I understand.

[00:35:22] Speaker 01:
I guess the difficulty is if you tell me that there might be an exception for the Fed and there might be an exception for Article I courts,

[00:35:31] Speaker 01:
then I don't know whether there should be an exception here either.

[00:35:35] Speaker 02:
Here's the key fork in the road, I think.

[00:35:38] Speaker 02:
The common thread between the Article I courts, the Fed, the Article IV courts, is that as either historical or doctrinal matter, there is a significant step one question as to whether that governmental entity is wielding traditional executive power.

[00:35:51] Speaker 02:
That is not present here.

[00:35:53] Speaker 02:
Here you have a traditional regulatory agent.

[00:35:55] Speaker 01:
I understand your point about here.

[00:35:57] Speaker 01:
I really want to get to other contexts that are implicated, but it seems that you're not able to do that.

[00:36:02] Speaker 02:
No, we have not resolved that step one inquiry for agencies not before this court.

[00:36:08] Speaker 01:
I'd like to go back to separation of powers for a moment.

[00:36:12] Speaker 01:
Sure.

[00:36:12] Speaker 01:
Because I understand your conception of it, which favors this very strong executive.

[00:36:18] Speaker 01:
But I guess separation of powers also requires that the executive not encroach on the prerogatives of Congress.

[00:36:25] Speaker 01:
And Congress is tasked with checking the executive

[00:36:31] Speaker 01:
And what you're asking this court to do essentially is to take more than 30 independent agencies that Congress created as independent and move them over to be directly under the control of the president.

[00:36:47] Speaker 01:
And how should we think about separation of powers in that respect?

[00:36:50] Speaker 01:
Because separation of powers is also, it's a two-way street.

[00:36:54] Speaker 01:
The executive can't encroach on Congress.

[00:36:57] Speaker 01:
It's supposed to prevent autocracy

[00:36:59] Speaker 01:
And the question is, why are these more than 30 agencies, which were designed by Congress to be independent, why do we need to move them under control of the executive?

[00:37:08] Speaker 01:
And how should we think about separation of powers in that light?

[00:37:12] Speaker 02:
You should think about separation of powers the exact way the Celia law majority thought about the separation of powers.

[00:37:18] Speaker 02:
And what they pointed out necessarily, and Judge Walker, I think, made this point really well, is that in all of these cases, there are policy arguments on behalf of independence applied one way or

[00:37:29] Speaker 02:
But the Constitution in 1789 made that policy decision for the country, which is that when a substantial executive power is wielded, it must be answerable to the president.

[00:37:39] Speaker 02:
So I understand the rationales for independence.

[00:37:41] Speaker 02:
Justice Kagan did a great job detailing them, but it was in a dissent.

[00:37:45] Speaker 01:
But if the end goal is enhancement of liberty and all of that, I just don't see how liberty is enhanced if Congress has designed it one way and we're going to.

[00:37:57] Speaker 01:
You're saying that the Constitution requires us to not allow them to do that.

[00:38:02] Speaker 02:
Right.

[00:38:02] Speaker 02:
Nor did Justice Kagan.

[00:38:04] Speaker 02:
And she made this point very powerfully in dissent.

[00:38:07] Speaker 02:
And I think that the view of the separation of powers that won the day and that is ultimately binding on this court.

[00:38:11] Speaker 01:
So you think it doesn't matter?

[00:38:13] Speaker 01:
Like, do you think a president can

[00:38:15] Speaker 01:
come into power and fire every judge on every Article One court and replace them with his own picks?

[00:38:21] Speaker 02:
The point that we're making is that Congress obviously has a tremendous role to play in the separation of powers.

[00:38:27] Speaker 01:
Do you think that that shouldn't matter to the analysis?

[00:38:29] Speaker 01:
Like a president should be able to do that?

[00:38:32] Speaker 01:
I don't think that lines aren't blurred.

[00:38:34] Speaker 02:
I don't think the normative question of the role of independence as good government as a general matter plays much in the analysis.

[00:38:44] Speaker 02:
Because again, there are rationales for independence in every one of these cases.

[00:38:49] Speaker 01:
Because these courts are exercising executive power, he gets to remove them for any reason.

[00:38:55] Speaker 01:
And he could fire every judge in an Article I court and replace them with his own pit.

[00:38:59] Speaker 02:
I think, if I understand the question, if an agency or if an agency head falls within the president's conclusive and preclusive, exclusive authority to remove, that's the nature of exclusive authority.

[00:39:12] Speaker 02:
I mean, if it falls within his constitutional removal power, he can do it for any reason.

[00:39:20] Speaker 01:
If a president is running for re-election, he would like the Fed to lower interest rates to goose the economy, and he pressures the Fed to do so, and the Fed says no.

[00:39:29] Speaker 01:
he could fire the Fed and all the governors.

[00:39:32] Speaker 01:
That enhances liberty.

[00:39:34] Speaker 02:
I mean, obviously, as we've discussed now at length, we don't have a view of the Fed, so I don't have a concrete- Theoretically, if they are an executive agency exercising executive power, that would be permissible, and that shouldn't factor- A good example, which we'll agree with, is Secretary of Defense, head of the EPA, head of a host of agencies that wield tremendous power.

[00:39:54] Speaker 02:
Yes, the president can remove that person at will.

[00:39:57] Speaker 02:
The best line, I think, from Justice Scalia's dissent in Morrison,

[00:40:00] Speaker 02:
is that a system of separate and coordinate powers by necessity involves an acceptance of exclusive power that theoretically may be abused.

[00:40:08] Speaker 02:
At day's end, the Constitution assigns exclusive powers to the branches of government.

[00:40:13] Speaker 02:
And you're correct.

[00:40:14] Speaker 02:
There are ways in which you can hypothesize a whole host of those exclusive powers being used for good, for bad, for something in between.

[00:40:21] Speaker 02:
But that is never a license for a separate branch of government to exceed their bounds and entrench upon the exclusive power of the president.

[00:40:27] Speaker 02:
And when it comes to principal officers,

[00:40:29] Speaker 02:
We hold substantial executive power.

[00:40:31] Speaker 02:
I think the Supreme Court has been polluted.

[00:40:33] Speaker 02:
They need to answer to the president.

[00:40:36] Speaker 01:
I'm sorry.

[00:40:37] Speaker 01:
No.

[00:40:38] Speaker 01:
OK, I'm sorry.

[00:40:39] Speaker 01:
I appreciate your indulgence.

[00:40:41] Speaker 01:
I just have one more question on the merits here.

[00:40:44] Speaker 01:
I guess I have a sort of overarching question, which is, why can't Congress design independent agencies?

[00:40:52] Speaker 01:
I mean, it seems to me that it begs the question to say, because they can't, because they have to be.

[00:40:57] Speaker 01:
because it seems to me that independent agencies, they're not accountable by at-will removal, but they're accountable in other ways.

[00:41:06] Speaker 01:
They are pointed by the executive.

[00:41:10] Speaker 01:
They have staggered terms, so every executive gets to appoint some of them.

[00:41:14] Speaker 01:
The executive gets to appoint the chairman.

[00:41:18] Speaker 01:
The executive gets to be involved in the budgetary process to fund the agency.

[00:41:23] Speaker 01:
They are also accountable to Congress.

[00:41:24] Speaker 01:
There's impeachment.

[00:41:27] Speaker 01:
Statutory amendments the president has to sign these into law And I'm just wondering why is at one removal the only way to hold an independent agency accountable?

[00:41:36] Speaker 01:
Why can't there be?

[00:41:37] Speaker 01:
Why why does it have to be a black or white thing?

[00:41:41] Speaker 02:
I think that In the most straightforward way to say it is that there because Colin said so Colin said is that there is no substitute for at will removal

[00:41:52] Speaker 02:
Because at will removal has been understood from 1789 onward.

[00:41:56] Speaker 01:
Assuming the whole executive power.

[00:41:59] Speaker 02:
Exactly.

[00:41:59] Speaker 02:
But I think our answer to it, and possibly part ways on it.

[00:42:03] Speaker 02:
But our answer in the most straightforward way is why.

[00:42:05] Speaker 02:
To answer why is that the entire executive power is vested in a president, the president alone.

[00:42:12] Speaker 02:
And when his agents wield his delegated power, they must be answerable to him.

[00:42:16] Speaker 02:
And whether or not folks think that- My question is just, can it be answerable in a different way?

[00:42:21] Speaker 02:
Certainly, the dissenters in free enterprise and serial law took a really good crack at that.

[00:42:26] Speaker 02:
But for the purposes of this court, I think the answer is no.

[00:42:29] Speaker 02:
Serial law answered that question already.

[00:42:34] Speaker 06:
Want to take just a few minutes on remedies?

[00:42:36] Speaker 06:
Do you have any questions on removal?

[00:42:40] Speaker 06:
No, let's do remedies.

[00:42:41] Speaker 06:
OK.

[00:42:42] Speaker 06:
We'll give you a couple of minutes on remedies.

[00:42:44] Speaker 02:
So the basic points with remedy is that, as the Supreme Court, I think it's made equally clear in cases like white and on

[00:42:51] Speaker 02:
is that the federal courts cannot use the injunctive power to order the reinstatement of a federal officer.

[00:42:57] Speaker 02:
And the main argument I understand on the other side is that there is a history of legal remedies reinstating people to certain people to certain offices.

[00:43:06] Speaker 02:
Of course, that history has no answer to the injunctions that are actually pending before this court.

[00:43:12] Speaker 02:
But I also- Pretty robust history.

[00:43:15] Speaker 02:
of legal remedies.

[00:43:16] Speaker 02:
What I mean is you have an injunction before you, which is an equitable remedy.

[00:43:19] Speaker 06:
Yeah, but I mean in the post-merger world, if you have cases going back to the beginning of time saying legal remedies are available, mandamus, quo warrant, et cetera, injunctive remedies are not available precisely because legal remedies are, which is what White says.

[00:43:44] Speaker 06:
Why are we fussing over whether they use the M word as opposed to the I word?

[00:43:50] Speaker 02:
Yeah.

[00:43:51] Speaker 02:
I think that because Grupa Mexicano told you to sweat the small stuff and that the nature of the remedy matters.

[00:43:59] Speaker 02:
They have distinct demands and most fundamental.

[00:44:02] Speaker 02:
What is the demand of Andamus?

[00:44:06] Speaker 02:
It's a distinct.

[00:44:07] Speaker 06:
Not in the injunctive test and would not be satisfied here.

[00:44:11] Speaker 02:
And the clearest example is is a different conception of the merits.

[00:44:15] Speaker 02:
So the mandamus, unlike a permanent injunction, you need an indisputable entitlement to relief needs to be unambiguously clear.

[00:44:22] Speaker 02:
And our submission in this case is, you know, whatever you think of Judge Walker's opinion, we think it was 100% right.

[00:44:27] Speaker 02:
But I think it is impossible to say that it is so clearly wrong as to warrant mandamus relief.

[00:44:33] Speaker 02:
That's the key piece for at least part one of mandamus.

[00:44:35] Speaker 02:
Another piece of it, too, is you need a unambiguous duty at issue.

[00:44:40] Speaker 02:
And this, I think, was the key point that Judge Rao made, in her opinion, was that when we're thinking about mandamus in this case, we need to first think about, where is it going to lie?

[00:44:49] Speaker 02:
And you have mandamus, what would happen is, for the first time in American history, running towards the president with respect to a principal officer.

[00:44:57] Speaker 06:
President for a second.

[00:44:59] Speaker 06:
I mean, we'll come to that.

[00:45:00] Speaker 06:
But just on the clear duty point, Swann says that a duty to work with someone who is, duty to keep someone not properly removable in office supports relief

[00:45:25] Speaker 06:
You know, maybe it's mandamus, maybe it's an injunction, but the the removed official.

[00:45:32] Speaker 06:
Putting aside the president can get.

[00:45:34] Speaker 06:
Relief.

[00:45:37] Speaker 06:
So I think within comes duty can be sufficiently clear once we figure out whether.

[00:45:44] Speaker 06:
The.

[00:45:45] Speaker 06:
Tenure protection is constitutional.

[00:45:47] Speaker 02:
I don't necessarily read Swan the same way.

[00:45:50] Speaker 02:
In that passage, I think it was a little bit unclear as to whether it's recapping the party's arguments or some presumption from the court.

[00:45:56] Speaker 02:
The best indication for that is in Severino, this court said that part is unclear.

[00:46:00] Speaker 02:
Whether the compliance with some removal statute can constitute a ministerial duty is, quote unquote, unclear under our precedent.

[00:46:08] Speaker 02:
That was in Severino.

[00:46:09] Speaker 02:
And I think that makes good sense for the reasons that Judge Rao was getting at.

[00:46:13] Speaker 02:
You can't have this conception of ministerial duty be defined at a hundred thousand foot level to define the law or to follow the law because then overnight everything's a ministerial duty.

[00:46:23] Speaker 02:
And I think here the better way to think about it is the way that the Mississippi versus Johnson court thought about it is is the action before you purely executive and political.

[00:46:32] Speaker 02:
And there are a few things more purely executive and political than the supervision of principal officers of the United States.

[00:46:38] Speaker 06:
And that's what Judge Silverman said in Swann criticizing the majority.

[00:46:45] Speaker 02:
Criticizing the majority, I understand.

[00:46:47] Speaker 02:
You didn't prevail on that point.

[00:46:50] Speaker 02:
That's true.

[00:46:50] Speaker 02:
But I also think that the, again, the scope of Swann with respect to ministerial duties, as the court clarified in Severino, I think, is unclear.

[00:46:57] Speaker 02:
And Judge Arow, I think, made this point well.

[00:47:02] Speaker 02:
The other point, too, though, I think, is you recognize in Dellinger is that what does pull this is the president.

[00:47:07] Speaker 02:
And that's a big deal, constitutionally speaking.

[00:47:09] Speaker 02:
And the reason that it necessarily targets the president, even though it nominally runs against subordinate officers, the key piece of this is that the appointment and removal of principal officers is an exclusive power of the president.

[00:47:22] Speaker 02:
It is a power personal to him, such that when you disable its effects, you nest, in your words, necessarily target the president.

[00:47:28] Speaker 02:
I think that's 100% right.

[00:47:30] Speaker 02:
And if you think of an analog to this,

[00:47:32] Speaker 02:
Imagine for a moment the president issues a pardon.

[00:47:35] Speaker 02:
And lower courts say, well, we can't touch the pardon.

[00:47:37] Speaker 02:
Pardon's unreviewable.

[00:47:38] Speaker 02:
Pardon's exclusive.

[00:47:39] Speaker 02:
But we'll just disable the world from giving it effect.

[00:47:42] Speaker 02:
I think everyone would see that as a direct attack on the pardon power outside of the federal court's authority.

[00:47:48] Speaker 02:
It's the exact same dynamic at play here.

[00:47:51] Speaker 02:
You cannot have a remedy, legal or equitable, run towards the president in the application of a purely executive and political duty.

[00:47:58] Speaker 02:
That is these injunctions, and that is what these would-be-mandamus remedy is to a T. And that is an independent ground set aside decisions below.

[00:48:07] Speaker 06:
One difference is the Dellinger order that I found problematic at the stay stage didn't seem to carve out the president in the way that these orders do.

[00:48:24] Speaker 06:
These are very clear.

[00:48:27] Speaker 06:
not targeting, not formally purporting to say anything by way of injunction or even declaration to the president.

[00:48:40] Speaker 02:
Right, I think that if I understand, you know,

[00:48:42] Speaker 02:
you'd be the authority on this.

[00:48:43] Speaker 02:
As I read your footnote in Dellinger, it was two points.

[00:48:46] Speaker 02:
One is, hey, it said all defendants, and that includes the president, open shot.

[00:48:50] Speaker 02:
But the other is, even putting that aside, a legal remedy or equitable remedy like the one here necessarily targets the president.

[00:48:58] Speaker 02:
Again, for all the points I was making before is because the fundamental action at issue is a personal and exclusive power of the president.

[00:49:06] Speaker 02:
And that pulls it into a different

[00:49:07] Speaker 02:
when it's an exclusive and personal power of the president, you cannot disable its effects without a remedy effectively running to him, for all the reasons that Judge Rao outlined, too.

[00:49:18] Speaker 05:
Would the remedy problem go away if they had sued for a writ of quote warrant home?

[00:49:23] Speaker 02:
So as I understand it, the quote of quote warrant home.

[00:49:26] Speaker 02:
I can't pronounce it.

[00:49:28] Speaker 02:
Yeah, there's a lot of that, don't they?

[00:49:30] Speaker 02:
You need a usurper in office.

[00:49:33] Speaker 02:
And I think that unless you have that person there to eject,

[00:49:37] Speaker 02:
The legal remedy isn't available.

[00:49:39] Speaker 05:
Which is why I think we're talking about mandamus.

[00:49:41] Speaker 05:
Correct.

[00:49:43] Speaker 05:
The Florida amicus brief was really big on co-warrant and I wondered what you're saying.

[00:49:48] Speaker 02:
I understand.

[00:49:48] Speaker 02:
I don't necessarily view it the same exact way as the exclusive remedy in this case.

[00:49:57] Speaker 05:
So I asked about this last go round at oral argument.

[00:50:02] Speaker 05:
Again, because you represent DOJ, DOJ has filed a brief in another case.

[00:50:08] Speaker 05:
And I think weakens your position here when DOJ is filing positions in other briefs that are inconsistent with your position here.

[00:50:17] Speaker 05:
So the other case is AC Transport.

[00:50:20] Speaker 05:
And in that case, on one side of the V is the Secretary of Labor, Mine Safety and Health Administration.

[00:50:31] Speaker 05:
On the other side of the V is the Federal Mine Safety and Health Review Commission.

[00:50:36] Speaker 05:
It's a private party involved.

[00:50:37] Speaker 05:
But if you're right about a unitary executive, everything you've said for the past hour is correct.

[00:50:43] Speaker 05:
That case is like the Department of State suing the Department of Defense about an intra-executive dispute coming to this court and saying, side with the Secretary of State.

[00:50:55] Speaker 05:
I don't understand how you can take the position you're taking in that case and take the position you're taking in this case.

[00:51:01] Speaker 02:
The way in which I think about it a bit is that even in a unitary executive, the president can kind of let the kids fight.

[00:51:10] Speaker 02:
If you have two different agencies who want to take different views, bring it before this court, haggle it out, that may well be something within his power to do.

[00:51:18] Speaker 02:
Now granted, the president can also settle the dispute on his own.

[00:51:21] Speaker 02:
And as I understand it from that case, there is a Article III question about how does that dynamic affect this court's jurisdiction?

[00:51:28] Speaker 02:
You know, can't speak at length to I think that's the sort of distinct analytical question there.

[00:51:32] Speaker 02:
I don't think there's any necessary problem.

[00:51:35] Speaker 02:
Article two wise began at the president's power is exclusive.

[00:51:38] Speaker 02:
It's definitive for him to choose not to exercise it at times, just as he can exercise it later.

[00:51:43] Speaker 05:
You could you could just choose not to make a decision and ask us for an advisory opinion about

[00:51:49] Speaker 05:
which cabinet department is correct.

[00:51:51] Speaker 02:
So I will, I will pass on the tip to the team litigating that the article three concerns at play.

[00:51:56] Speaker 02:
But I think that that is the distinct question there.

[00:51:58] Speaker 02:
I think that there's a analytical framework of what can the president do about managing his own branch versus what can, how does that translate into a cognizable case and controversy for you to make the decision on?

[00:52:11] Speaker 02:
That's the distinct question there.

[00:52:13] Speaker 05:
I'm going to guess, you know,

[00:52:14] Speaker 05:
and Rubio will disagree at times.

[00:52:16] Speaker 05:
It might be fun if you brought all those disputes to us and asked us to resolve them, but I don't think that's what Article III courts are for.

[00:52:23] Speaker 02:
I take the point, but I think that for at least present purposes, it's an Article III point.

[00:52:28] Speaker 02:
Here, for at least the Article II argument about accountability, what kind of power can an agency wield is separate and apart.

[00:52:35] Speaker 05:
I think I'll ask all sides, how big of a hurry are you in for us to decide this case?

[00:52:41] Speaker 02:
I think with all deliberate speed, we would like to think

[00:52:46] Speaker 02:
You might depend on whether you get the stay.

[00:52:50] Speaker 05:
Well, that's it.

[00:52:50] Speaker 05:
I mean, you asked for a serve before judgment.

[00:52:52] Speaker 05:
Yeah, then take your time.

[00:52:53] Speaker 05:
An administrative stay from the Supreme Court.

[00:52:55] Speaker 05:
So I don't know.

[00:52:57] Speaker 05:
It's only an administrative stay, as were.

[00:53:02] Speaker 02:
I think in all events, proper expedition is appropriate because no one benefits from a lack of clarity in this area.

[00:53:11] Speaker 02:
And the seesawing that is involved in these cases in years to no party.

[00:53:16] Speaker 02:
So I think everyone, I don't know, I won't speak for them.

[00:53:18] Speaker 02:
But expedition, I think, is to everyone's interest.

[00:53:23] Speaker 01:
I have one more question.

[00:53:24] Speaker 01:
We do have an order from the en banc court in this case.

[00:53:28] Speaker 01:
And it does say that these executor and wiener, they're presidential, and they denied the stay.

[00:53:33] Speaker 01:
I'm just wondering, how should we think about that en banc order?

[00:53:38] Speaker 01:
It's recent in this case.

[00:53:41] Speaker 01:
It's an order of the en banc court.

[00:53:44] Speaker 02:
I think that you give it a really hard look and you give it a lot of weight, but it's not dispositive because a stay is a preliminary view of the merits that the merits panel is still entrusted with giving its best shot at answering.

[00:53:58] Speaker 02:
And who knows?

[00:53:59] Speaker 02:
I mean, depending on the opinions in this case, depending on what's written, I know a lot of ink has been spilled on this already, but there's always more.

[00:54:05] Speaker 02:
You have a chance to change your colleagues minds.

[00:54:07] Speaker 02:
You have a chance to give input to a possible Supreme Court case.

[00:54:10] Speaker 02:
The duty before this panel right now is to get the answer right to the best of your ability.

[00:54:17] Speaker 02:
Thank you.

[00:54:18] Speaker 02:
Thank you.

[00:54:18] Speaker 06:
Thank you.

[00:54:26] Speaker 06:
Mr Zelensky.

[00:54:27] Speaker 03:
Good morning.

[00:54:28] Speaker 03:
Judge Katzis, may it please the court, Nathaniel Zalinski on behalf of Kathy Harris.

[00:54:32] Speaker 03:
Judge Katzis, I'd like to start by going over some of the functions of the Merit System Protection Board, which is where I think the rubber meets the road.

[00:54:39] Speaker 03:
And to do so, I want to start actually with where you were, Judge Pan, when you noted that the government's position would lead to the sweeping eradication of a wide variety of independent agencies potentially, and it seems including the Federal Reserve.

[00:54:53] Speaker 03:
And the reason, Judge Katsas, there would be such a widespread disruption is because the MSPB is actually the easy case under Humphrey's executor and Wiener, because it is engaged in adjudicatory behavior.

[00:55:06] Speaker 03:
So I'd like to start with those two points that you raised, one about rulemaking and one about litigating authority.

[00:55:13] Speaker 03:
So on rulemaking, my understanding is that all of the rules that MSP makes are purely procedural.

[00:55:19] Speaker 03:
They're like court rules.

[00:55:20] Speaker 03:
I see your briefs over there, Judge Pan.

[00:55:22] Speaker 03:
They've got red color.

[00:55:23] Speaker 03:
They've got green color.

[00:55:25] Speaker 03:
That's pursuant to rules of this court.

[00:55:28] Speaker 03:
Even the rules, my understanding for ALJs, and it's notable the government didn't brief this, Judge Katzis, my understanding is those rules as well that MSPB has promulgated are procedural in nature.

[00:55:40] Speaker 06:
I tried to run this to ground and couldn't quite

[00:55:46] Speaker 06:
figure it out.

[00:55:48] Speaker 06:
There's a grant of rulemaking authority in 7701, which seems pretty clearly limited to secondary conduct for the agency procedural.

[00:56:01] Speaker 06:
There's a separate grant of rulemaking authority in 1204H, which just says

[00:56:13] Speaker 06:
regulations as necessary to perform the MSPB's function.

[00:56:20] Speaker 06:
You might read that as procedural only, but you could readily read that to give it the ability to pass legislative rules regarding the prohibited personnel practice, which is the rough equivalent of the unfair labor practice.

[00:56:40] Speaker 03:
So Judge Katzis, let me give you a couple answers to that.

[00:56:43] Speaker 03:
One is just empirically, MSPB just hasn't done that.

[00:56:45] Speaker 03:
I didn't find.

[00:56:47] Speaker 03:
It just hasn't.

[00:56:48] Speaker 03:
It doesn't do rulemaking.

[00:56:49] Speaker 03:
The government hasn't suggested it does rulemaking.

[00:56:52] Speaker 03:
And I don't want to talk about the review, potentially the negative adjudicatory power about OPM, but bracketing that off for a second, it does not do rulemaking.

[00:57:00] Speaker 03:
And so it's purely adjudicatory.

[00:57:02] Speaker 03:
To the extent you think that you could read H. It might be like the NLRB, which

[00:57:09] Speaker 06:
has rulemaking power and doesn't like it.

[00:57:12] Speaker 03:
So I think that I don't think just historically that that historical practice, I do think liquidates what the meaning of that rule is.

[00:57:19] Speaker 03:
But even if you thought that there's some possibility, I think a constitutional principles of constitutional avoidance say read H as to not provide that if you think that's where the line is.

[00:57:29] Speaker 03:
And I don't think that's where the line is, by the

[00:57:30] Speaker 03:
I think we would win even without it.

[00:57:32] Speaker 03:
But if you think that's where the line is, principles of constitutional avoidance say, okay, read that power to be how MSPB has exercised it, which is just the promulgation of really, and I hate to say this, boring court rules, colors of briefs, how you file, just like the DC Circuit's internal operating procedures and practices,

[00:57:52] Speaker 03:
just like the federal rules of health procedures.

[00:57:54] Speaker 03:
So I think you could just bracket that off as a matter of constitutional avoidance if it bothered you.

[00:58:00] Speaker 03:
And then in an appropriate case, you could always invalidate a rule MSPB passed as beyond the scope of its authority.

[00:58:07] Speaker 03:
And it's telling that the government didn't even raise this.

[00:58:09] Speaker 03:
And I do think if we're going to have a really serious separation of powers debate, we should look at substance, not shadow here.

[00:58:16] Speaker 06:
What about 1305 on ALJ?

[00:58:20] Speaker 03:
So my understanding is the same.

[00:58:22] Speaker 06:
I found a case.

[00:58:24] Speaker 06:
I think it's tonic.

[00:58:27] Speaker 06:
Don't hold me to that, but I found a case where the Federal Circuit.

[00:58:31] Speaker 06:
Treated regs under 1305 as substantive and having to go through notice and comment rulemaking, which would not be the case if they were just

[00:58:44] Speaker 03:
Yeah.

[00:58:45] Speaker 03:
So with the issue, because the issue hasn't been briefed, Judge Katzis, I'm not as familiar with it.

[00:58:50] Speaker 03:
And if it would help the court, we're happy to provide supplemental briefing.

[00:58:54] Speaker 03:
My understanding is that the ALJ regs are codified at 5 CFR 12.01.139.

[00:59:02] Speaker 03:
My understanding is that that reg is procedural.

[00:59:05] Speaker 06:
Say it again.

[00:59:06] Speaker 03:
It's 5 CFR 1201.139.

[00:59:09] Speaker 03:
And I will acknowledge this is very back to the envelope because this issue wasn't briefed.

[00:59:15] Speaker 03:
So to the extent that you would need further briefing, we're happy to provide it.

[00:59:19] Speaker 03:
I think, by the way, we win even without it.

[00:59:21] Speaker 03:
And I think one thing you could do is if you even had to go so far as to strike down that provision, it does not change MSPB at all.

[00:59:28] Speaker 03:
And Arthrex will give you that

[00:59:31] Speaker 03:
flexibility to choose remedy there because in Arthrex there is a four-cause removal provision.

[00:59:36] Speaker 03:
Yeah, so Arthrex gives you that flexibility.

[00:59:38] Speaker 03:
And what I want to say is you could strike this power, and frankly, any of the other powers, the sort of ancillary powers that don't occur in practice, the government points to, and MSPB will not change at all.

[00:59:49] Speaker 03:
I also heard Judge Cassis, my friend on their side, to suggest when it came to the Federal Reserve that you look at what the agency predominantly does.

[00:59:57] Speaker 03:
My friend on their side agrees that this agency is predominantly adjudicatory.

[01:00:00] Speaker 03:
So I think under that test,

[01:00:01] Speaker 03:
I mean, everyone agrees that what MSAD is doing is it's taking cases that have a set of facts and it's applying the law to the facts.

[01:00:09] Speaker 03:
It's things like partisan discrimination and whistleblower retaliation.

[01:00:13] Speaker 03:
And Judge Pan, to your point about Congress's role, Congress has the ability under Perkins to regulate the removal of ordinary civil servants that can say a president who's a Democrat can't fire somebody because they're Republicans and vice versa.

[01:00:26] Speaker 03:
All MSPB is doing is taking the law and applying it to facts.

[01:00:30] Speaker 03:
And it's not supervising the executive branch.

[01:00:33] Speaker 06:
All right, so let's talk about the adjudication.

[01:00:39] Speaker 06:
I see two very different models of adjudication.

[01:00:47] Speaker 06:
One is just what courts do and what Humphreys described as

[01:00:55] Speaker 06:
applying no policy other than the law.

[01:01:00] Speaker 06:
And that's a pretty fair description of the War Claims Commission in Wiener.

[01:01:06] Speaker 06:
I'll ask your friend about whether or not that's a good description of NLRB adjudications.

[01:01:15] Speaker 06:
But the MSPB, I mean,

[01:01:20] Speaker 06:
looks, if you look at the federal circuit opinions, the MSPB adjudications are more like Chenery to Bell aerospace kind of agencies, which get to make policy and change their views and invent.

[01:01:38] Speaker 06:
So all factor tests for assessing whether a sanction is excessive or not.

[01:01:43] Speaker 06:
So I think it feels more like, you know,

[01:01:47] Speaker 06:
national policy regarding civil service than it does no policy other than the law.

[01:01:54] Speaker 03:
So, Judge Katz, I actually think that we are squarely within the no policy other than the law.

[01:01:59] Speaker 03:
And I'll give you a couple of responses, and I want to walk through.

[01:02:02] Speaker 03:
But the first is just sort of a top line.

[01:02:03] Speaker 03:
I'd point you to the brief by the former

[01:02:05] Speaker 03:
MSPB officials who are before this court, who talk about how MSPB adjudicates cases.

[01:02:11] Speaker 03:
And even in, by the way, the Douglas Factors, which I think is what you're referring to as a 12-factor test, that is extraordinarily deferential to the agency.

[01:02:19] Speaker 03:
And it's a test.

[01:02:21] Speaker 03:
And this court, by the way.

[01:02:21] Speaker 06:
It's deferential, but it has the feeling of being made up of the agency

[01:02:27] Speaker 06:
doing something it could have done through rulemaking, in adjudication, see Channery too.

[01:02:34] Speaker 03:
So I don't think so, Judge Katz, in the same way that this court will often have a multi-factor test to try and flesh out a legal standard.

[01:02:41] Speaker 03:
You know, we do that all the time.

[01:02:43] Speaker 03:
We say we look to these

[01:02:44] Speaker 03:
factors, however many may be, and you may not like 12.

[01:02:49] Speaker 03:
There's a bankruptcy test that comes to mind.

[01:02:51] Speaker 06:
Four or five.

[01:02:52] Speaker 03:
You may not like any, right?

[01:02:53] Speaker 03:
But there's a famous bankruptcy test that involves determining substance over form in bankruptcy.

[01:02:59] Speaker 03:
It comes from a Sixth Circuit case written by Judge Boggs.

[01:03:01] Speaker 03:
I think it has 11 factors.

[01:03:03] Speaker 03:
I don't think Judge Boggs wasn't engaged in a judicial function when he looked and said, this is the contours of that test.

[01:03:11] Speaker 03:
And one of the really promising indications, I think, of the fact that we are not engaged or that the board is not engaged in any kind of policymaking is that the board doesn't flip-flop its tests at all or change its policies based on the composition of the board.

[01:03:26] Speaker 03:
And again, I point you to that brief by the members, former members of the board and former general counsel, who actually say the board is remarkably consistent over time.

[01:03:35] Speaker 03:
And that's a hallmark of an adjudicatory body doing a very

[01:03:39] Speaker 03:
sort of humdrum adjudication where it's taking a standard.

[01:03:41] Speaker 06:
The case I found on ALJs was a flip-flop in which pre-brand X, pre-loper bright, the federal circuit recognized a brand X power to flip-flop.

[01:03:54] Speaker 03:
It's extraordinarily rare.

[01:03:55] Speaker 03:
I'm not familiar with that particular case, Judge Cassis, but the members of the MSPB who are in front of you and are providing guidance for Mickey say that that is extraordinarily rare, rarely ever happens on partisan lines.

[01:04:08] Speaker 03:
So I think just empirically, that may be a needle in a haystack.

[01:04:13] Speaker 03:
It's not one that I'm familiar with, and it's certainly not one that the government has pointed to as concerning.

[01:04:18] Speaker 03:
But by the way, I think even if you took those powers, I still think we fall within the historical exception for multi-member boards or commissions, because the test is not

[01:04:28] Speaker 03:
Is there any ounce of executive power?

[01:04:30] Speaker 03:
The test is one that's codified by historical practice.

[01:04:34] Speaker 03:
What Celia Law did, it didn't just say, is there anything more than what the FTC did in 1935?

[01:04:39] Speaker 03:
Because if that's a test, Celia Law didn't have to be nearly as long as it was.

[01:04:43] Speaker 03:
Celia Law instead contrasted, on the one hand, the single director agency structure of CFPB with a multi-member body.

[01:04:52] Speaker 03:
And the Merit System Protection Board is a traditional multi-member body.

[01:04:55] Speaker 03:
In historical practice, Judge Panney, it does matter.

[01:04:58] Speaker 03:
And it fleshes out the contours in a separation of powers case of what the permissible boundaries of what Congress can do.

[01:05:07] Speaker 03:
And the fact that the MSPB looks like multi-member boards and commissions that have existed since at least 1887, and if you count Article I courts, which we do, even earlier.

[01:05:17] Speaker 03:
In fact, Judge Pan, you probably could call this the Merit System Protection Court.

[01:05:22] Speaker 03:
Call it an Article I court, and it'd be functionally the same thing.

[01:05:26] Speaker 03:
And I think that's a telling indication

[01:05:29] Speaker 06:
Sorry, no, no, go ahead.

[01:05:30] Speaker 06:
I just I want to.

[01:05:32] Speaker 06:
You want to talk in bold strokes?

[01:05:34] Speaker 06:
I want to take your back to nitty gritty of things that might or might not be executive.

[01:05:39] Speaker 06:
So help me out with.

[01:05:41] Speaker 06:
Litigating authority, so I want to be clear about my my understanding is.

[01:05:47] Speaker 06:
The MSPB has its own independent litigating authority.

[01:05:54] Speaker 06:
When cases appear for one reason or another,

[01:05:58] Speaker 06:
district court.

[01:06:00] Speaker 06:
And then in the federal circuit, A, when the MSPB has acted in an original rather than an appellate capacity,

[01:06:12] Speaker 06:
or B, they've acted in an appellate capacity but dismissed a complaint for procedural and jurisdictional reasons as opposed to the merits of the termination.

[01:06:21] Speaker 03:
Is that about right?

[01:06:22] Speaker 03:
It's a little different.

[01:06:23] Speaker 03:
And I want to answer the question.

[01:06:25] Speaker 03:
First, I'm going to say that Justice Alito in the Perry case said that the Civil Service Reform Act was a bit like drafted by someone who picked wings off of flies.

[01:06:33] Speaker 03:
So it's very complicated is what I want to say.

[01:06:36] Speaker 03:
And so I'm going to apologize at the answer I'm about to give.

[01:06:38] Speaker 03:
because it is, as Justice Lito said, a little bit like picking those wings off.

[01:06:42] Speaker 03:
The Perry case I think does a good job of explaining how cases can be channeled in different ways.

[01:06:49] Speaker 03:
In general, the MSPB will be litigating in two circumstances.

[01:06:54] Speaker 03:
the first circumstance and will always be in the courts of appeals with one exception generally they will be in the courts of appeals that can be the federal circuit it can also be regional courts including this court.

[01:07:05] Speaker 03:
And that will be when one of two things happens when it's a complex procedural appeal the boards

[01:07:12] Speaker 03:
Will being the name defendant and the board's attorneys will go because this is a statute that literally is like picking wings off of flies and so to assist the courts.

[01:07:21] Speaker 03:
That's the purpose of that provision that the board attorneys go to the court.

[01:07:25] Speaker 03:
The second circumstance is in circumstance where OPM.

[01:07:29] Speaker 03:
dislikes a ruling that MSPB has made and wants to appeal.

[01:07:33] Speaker 03:
And that's because MSPB, Judge Panney, is like an Article 1 court.

[01:07:36] Speaker 03:
And so it's adjudicating cases that come before it.

[01:07:39] Speaker 03:
On the one hand, you've got the employer, employee.

[01:07:42] Speaker 03:
On the other hand, you've got the employing agency.

[01:07:43] Speaker 03:
So where OPM says,

[01:07:44] Speaker 03:
Disagree with the result and I want to appeal to a court MSPB will technically be a named defendant.

[01:07:49] Speaker 03:
Of course, the employee is also a party to that litigation and so in that circumstance, the board will be a defendant.

[01:07:56] Speaker 03:
I do not think the board actually litigates cases in district court.

[01:08:00] Speaker 03:
The only circumstance in which it might

[01:08:02] Speaker 03:
And my understanding is this has never happened, or at least in recent memory.

[01:08:07] Speaker 03:
And there's actually a declaration by Kathy Harris in the district court to this effect and an undisputed statement of material fact that the government did not contest is the MSPB has the technical power to request that a court enforces subpoena

[01:08:20] Speaker 03:
It would do that if it ever occurred in district court.

[01:08:23] Speaker 03:
Again, that's one of those powers that doesn't happen.

[01:08:26] Speaker 03:
And so if you under Arthrex, if you were concerned about that judge passes, you could wave a hand tomorrow.

[01:08:31] Speaker 03:
It's gone.

[01:08:31] Speaker 03:
It's not going to change the agency at all.

[01:08:34] Speaker 03:
By the way, I don't think litigating authority alone can be enough because almost every independent agency, or not every, but many independent agencies have litigating authority.

[01:08:44] Speaker 03:
And also, litigation authority is not purely executive.

[01:08:48] Speaker 06:
It's executive.

[01:08:50] Speaker 06:
I mean, it's more executive than what the CAF does or what the tax court does or what the Mine Safety Review Commission does or the Benefits Review Board.

[01:09:07] Speaker 03:
So Judge Katz's district court judges litigate in appellate courts.

[01:09:12] Speaker 03:
They are named respondents in mandamus cases.

[01:09:13] Speaker 06:
Very extraordinary.

[01:09:15] Speaker 06:
The mandamus statute was changed so that the district court judge was not named and put in

[01:09:21] Speaker 03:
But it happened recently, and Ray Flynn is the last time, I think, one of the times it happened in this court, sort of a cause celebre in terms of cases.

[01:09:30] Speaker 03:
So it's not purely executive.

[01:09:31] Speaker 03:
And purely executive, by the way, is not the test.

[01:09:34] Speaker 03:
But it's not even purely executive.

[01:09:36] Speaker 03:
And members of Congress can litigate in court as well, and houses a Congress litigating court.

[01:09:42] Speaker 03:
But I think that just to step back for a second,

[01:09:45] Speaker 03:
I don't think that the question is, are you purely adjudicatory?

[01:09:49] Speaker 03:
I think we are very far on the adjudicatory side of the line.

[01:09:52] Speaker 03:
But I also don't think that Celia Law was saying that the historical twin to the FTC and Wiener was the line.

[01:09:59] Speaker 03:
And so if I could, I'd like to convince you that there's more alive.

[01:10:03] Speaker 06:
If we just take the CELA test on its face and just apply modern

[01:10:13] Speaker 06:
best-in-clause ideas, footnote four, I think, from the city of Arlington.

[01:10:18] Speaker 06:
This is an easy case, and you lose.

[01:10:20] Speaker 06:
The reason why it's a hard case is we also have to give some reasonable effect to Humphreys.

[01:10:27] Speaker 06:
That's why I'm trying to think of something to place agencies on this spectrum.

[01:10:34] Speaker 03:
And so I completely agree that Celia Law looks to both Humphreys and I'd add Wiener in that list.

[01:10:41] Speaker 03:
But I don't think Celia Law is saying, we are going to just look at, are you executive?

[01:10:46] Speaker 03:
Yes, no.

[01:10:46] Speaker 03:
Instead, what it's doing is it is looking at historical practice.

[01:10:50] Speaker 03:
Because as then Judge Kavanaugh noted in PHH, deeply rooted history and tradition

[01:10:57] Speaker 03:
matters, and there's a deeply rooted history and tradition in multi-member boards or commissions.

[01:11:00] Speaker 03:
If it were as simple as saying the vesting clause is the answer, does it exercise any ounce of executive power, and it's not the FTC in 1935, then I actually think silly a lot can be a much, much, much shorter opinion.

[01:11:14] Speaker 03:
That's not what the court said.

[01:11:15] Speaker 03:
It goes out of its way to say, to contrast those traditional multi-member boards or commissions with the CFPB, which is a single director agency.

[01:11:26] Speaker 03:
I think it would actually be a bit of a bait and switch for the court to have said we're preserving Humphrey's executor and then to have narrowed it effectively into non-existence.

[01:11:34] Speaker 03:
But I do think that the Merit System Protection Board is about as purely adjudicatory, if that's where you think the line is.

[01:11:41] Speaker 03:
It's about as purely adjudicatory as an agency body can come.

[01:11:44] Speaker 03:
I'd like to talk for a moment about the OPM, the review of rules, because it's one of the other things that the government points to that you discussed with my friend on the other side.

[01:11:52] Speaker 03:
OPM, that is, as Judge Henderson noted in her decision, that is actually a negatory power.

[01:12:00] Speaker 03:
It is just like when this court reviews a regulation, so it's an adjudicatory power.

[01:12:04] Speaker 03:
The government made some suggestion that we do this on a Suez-Ponte basis.

[01:12:10] Speaker 03:
We could find a single instance of that ever occurring.

[01:12:12] Speaker 03:
I still think it would be adjudicatory, by the way.

[01:12:15] Speaker 03:
But you can.

[01:12:16] Speaker 03:
And again, I come back to the Arthrex point.

[01:12:17] Speaker 03:
This just never occurs.

[01:12:19] Speaker 03:
I think substance should matter in separation of powers cases, especially ones that threaten

[01:12:26] Speaker 03:
the Federal Reserve Board and foundational institutions that sort of undergird the government.

[01:12:30] Speaker 03:
And the fact that this never occurs, I think, is extraordinarily telling.

[01:12:36] Speaker 06:
And you don't think, I guess last point I have on adjudication, you can afford a much broader

[01:12:49] Speaker 06:
much broader scope of relief than just a negative cease and desist order.

[01:12:53] Speaker 06:
You can adjudicate that and then you can defend it in court and you do the discipline.

[01:13:02] Speaker 03:
So we don't do discipline.

[01:13:03] Speaker 03:
I want to be very clear.

[01:13:04] Speaker 03:
The MSPB doesn't supervise the federal workforce any more than a court supervises college admissions because it happens to apply laws against discrimination.

[01:13:16] Speaker 03:
The MSPB is in the business of applying laws against partisan discrimination, whistleblower retaliation, and the like within the federal government.

[01:13:23] Speaker 03:
And just like a court, when it

[01:13:26] Speaker 03:
looks at, as the Supreme Court did in SSAB Harvard, looks at college admissions and says it's violating Title VII, Title VI, sorry, so too.

[01:13:34] Speaker 06:
1215, do I have this wrong?

[01:13:37] Speaker 06:
Special counsel wants to discipline an employee or an agency for violating this or that.

[01:13:46] Speaker 06:
prohibited personnel practice, you adjudicate that.

[01:13:49] Speaker 03:
So it's an adjudication.

[01:13:51] Speaker 03:
It's an adjudication, Judge Katz.

[01:13:52] Speaker 03:
It's just the same way that a court will adjudicate a question about what sentence someone should receive.

[01:13:58] Speaker 03:
I don't think anyone thinks that that is a prosecutorial function when someone comes before a district court, when the prosecutor comes before the district court and says, I would like

[01:14:05] Speaker 03:
this sentence to be imposed.

[01:14:08] Speaker 06:
Same point about ordering reinstatement and monetary relief.

[01:14:13] Speaker 03:
100%.

[01:14:14] Speaker 03:
It's an adjudicatory function.

[01:14:15] Speaker 03:
And the War Claims Commission did that, right?

[01:14:16] Speaker 06:
That is sort of running into SILA law saying the power to seek monetary

[01:14:23] Speaker 06:
Remedies as opposed to cease and desist is an executive like thing.

[01:14:28] Speaker 03:
So I, my understanding, I will, I will say this is not the vast penalties that were an issue in Celia law.

[01:14:33] Speaker 03:
We're talking, I think it caps out at a little over a thousand dollars.

[01:14:36] Speaker 03:
So just to be very clear about the penalties we're talking about, um, I think that that that's why the best reading of Celia law really comes down to that historical practice.

[01:14:45] Speaker 03:
So I maybe read Celia law a little differently than you do.

[01:14:48] Speaker 03:
So I do think the dividing line there is between single directory agencies, multi-member, traditional multi-member boards or commissions.

[01:14:55] Speaker 03:
And it's telling that the Supreme Court at Judge Katz's has never struck down a traditional multi-member board or commission.

[01:15:01] Speaker 03:
And because it's a separation of powers case, I do think

[01:15:03] Speaker 03:
The practice of the other two branches matters as well.

[01:15:07] Speaker 03:
And no other president has taken this position with respect to the MSPB.

[01:15:10] Speaker 03:
In fact, OLC in 1978 took the position when MSPB was created that it was a permissible kind of

[01:15:18] Speaker 03:
legislative body.

[01:15:19] Speaker 03:
So I think OLC's opinion deserves some weight here in the separation of powers context.

[01:15:24] Speaker 03:
And silly a lot did look to the fact that there were a series of objections to single director agencies by the executive.

[01:15:33] Speaker 03:
Well, the exact opposite is true here.

[01:15:35] Speaker 03:
We're talking about Congress and the president both cooperating to create an agency in reliance on the Supreme Court's precedent.

[01:15:43] Speaker 06:
And any questions on Walker?

[01:15:47] Speaker 05:
Merits.

[01:15:49] Speaker 05:
You said that MSPB is the easy case under Humphreys and Wiener?

[01:15:53] Speaker 03:
Yes.

[01:15:54] Speaker 05:
You mean easy compared to NLRB?

[01:15:56] Speaker 03:
No, I mean easy compared to the gamut of potential agencies that are out there.

[01:16:01] Speaker 03:
So MSPB is taking law and it's applying that law to the facts of the cases in front of it.

[01:16:07] Speaker 03:
It doesn't do, for instance, rulemaking, as Judge Katz has noted.

[01:16:10] Speaker 03:
The rulemaking that we engage in is purely procedural.

[01:16:14] Speaker 03:
And so I acknowledge that there's a spectrum of agencies.

[01:16:16] Speaker 03:
I do think that we may disagree on what the scope of that gray zone that Humphrey's executor leaves in place is.

[01:16:23] Speaker 03:
So I probably think it's a little bigger than you do.

[01:16:26] Speaker 03:
I think, though, that we are on the far end.

[01:16:29] Speaker 03:
And I think Judge Henderson agreed with us at this stage.

[01:16:31] Speaker 03:
We're sort of at the far end of that bell curve.

[01:16:33] Speaker 05:
Do you think NLRBs are the same far end?

[01:16:37] Speaker 03:
I'm not here to speak about the NLRB.

[01:16:40] Speaker 03:
I'm like the United States.

[01:16:41] Speaker 03:
I don't really have a position on separate agents like that.

[01:16:44] Speaker 05:
And then how fast do you want us to go?

[01:16:47] Speaker 05:
You're facing administrative stay from the Supreme Court right now.

[01:16:51] Speaker 03:
I am not here to tell the panel what to do or not to do.

[01:16:53] Speaker 03:
But I think speed is helpful here.

[01:16:58] Speaker 03:
We did agree to expedited briefing for much the same reason.

[01:17:02] Speaker 06:
give you a minute or two on remedies if you want it.

[01:17:05] Speaker 03:
Sure, Judge Katzis, I really appreciate it.

[01:17:08] Speaker 03:
I would make just a couple of points on remedies.

[01:17:09] Speaker 03:
The first is I completely agree with you.

[01:17:11] Speaker 03:
The history here is extraordinary.

[01:17:13] Speaker 03:
And in this particular case, even if we don't have you on injunctive relief, and I think Swan and Sabrina are binding there on the panel, even if we don't have you on injunctive relief, the district court in our case was very clear they would have granted mandamus and the alternative.

[01:17:24] Speaker 03:
And Swan's footnote one directly addresses the question of whether mandamus can issue.

[01:17:30] Speaker 03:
The court says that, quote, we find that the prerequisites for stating a cause of action under the mandamus statute are met in this case.

[01:17:37] Speaker 03:
Um, so I just, I think that's binding.

[01:17:39] Speaker 03:
And even I take, by the way, Judge Silverman, not to have disagreed that a remedy could issue.

[01:17:44] Speaker 03:
He just didn't want to sign on to a bunch of what he called judicial chest thumping on the question of whether you could join the president or not.

[01:17:51] Speaker 03:
Judge Silverman too agreed that relief could issue against the subordinate official.

[01:17:55] Speaker 03:
Um, and you know, I think it would be extraordinary indeed if you have Blackstone saying that there'd be full and effectual relief.

[01:18:03] Speaker 06:
I mean, Blackstone, Marbury, they,

[01:18:07] Speaker 06:
They get you the typical case not involving the president.

[01:18:11] Speaker 06:
To me, that's what makes this hard.

[01:18:14] Speaker 03:
So Marbury involved a Senate-confirmed official, Your Honor.

[01:18:17] Speaker 06:
Involved the Secretary of State who was ordered to deliver a signed petition.

[01:18:23] Speaker 03:
But it's the same, but William Marbury.

[01:18:25] Speaker 06:
I mean, I gather there might be some history that Jefferson tried to remove him, but that's not the face of the painting.

[01:18:32] Speaker 03:
So, but William Marbury was a Senate confirmed official and the failure to provide the commission is tantamount to removal.

[01:18:40] Speaker 03:
So I think it's very hard to say that Marbury versus Madison is not a very early precedent for the proposition that this will run against principal officers.

[01:18:48] Speaker 03:
And I also think Judge Katz's that there

[01:18:50] Speaker 03:
that the only way to understand the government's remedies arguments is to bootstrap the merits into the remedies.

[01:18:56] Speaker 03:
The government's remedies argument is, we have this preclusive authority that no one can touch.

[01:19:01] Speaker 03:
And if you agree on that, you actually agree with the government on the merits.

[01:19:04] Speaker 03:
But if you disagree with the government on the merits, the remedies argument, I think, falls apart.

[01:19:07] Speaker 06:
Yeah, I get that.

[01:19:08] Speaker 06:
But what happens

[01:19:12] Speaker 06:
Would the president be in violation of any of these orders if he nominated successors?

[01:19:21] Speaker 03:
So, Your Honor, Judge Silberman addressed this in his swan concurrence.

[01:19:24] Speaker 03:
And what he said is, to the extent that the president could attempt to subvert the court's order, that's just another way of saying the president could court a constitutional crisis.

[01:19:32] Speaker 03:
And Judge Silberman had some delightfully colorful prose where he said, we either go to the

[01:19:37] Speaker 03:
barricades or the basement, depending on our predilection.

[01:19:39] Speaker 03:
And I haven't decided where I'm going yet.

[01:19:41] Speaker 03:
But I do think that ultimately- Is he bound by this order?

[01:19:49] Speaker 03:
Why would it be a constitutional crisis if he's- Because when the court has said, I think when the court has said what the law is, so let me give you an example in Youngstown.

[01:19:57] Speaker 06:
District court says what the law is in a case not involving the president and he's-

[01:20:03] Speaker 06:
Creating a constitutional crisis, if he disagrees.

[01:20:06] Speaker 03:
So let me take Youngstown, Your Honor.

[01:20:08] Speaker 03:
In Youngstown, there was an injunction.

[01:20:10] Speaker 03:
And the face of the opinion in Youngstown is very clear.

[01:20:12] Speaker 03:
That is President Truman's policy to seize the steel mills.

[01:20:15] Speaker 03:
And in Youngstown, the injunction issues against the subordinate official there, I think it's the Secretary of Commerce,

[01:20:22] Speaker 03:
If the president had picked somebody else who wasn't a named party to the injunction, had found some marshal or some FBI agent, whoever, and said, OK, now you seize the steel mills, you go and do it because you're not subject to the order only the secretary of commerce is, I do think that is exactly what Judge Shilson was talking about.

[01:20:40] Speaker 03:
We expect the executive in that circumstance to abide by the fiction that you sue the subordinate official.

[01:20:46] Speaker 03:
And that's how we get judicial review against the executive branch.

[01:20:48] Speaker 03:
To give you another example, Biden v. Nebraska on student violence.

[01:20:52] Speaker 06:
That way of looking at it tends to reinforce your friend's view that in substance, though not informed, these orders run against the president.

[01:21:03] Speaker 03:
So I think, Judge Katz, is that we have historically, and again, I come down to Youngstown, right?

[01:21:09] Speaker 03:
In Youngstown, everyone agrees that you can get that relief, even though it is President Truman's policy, right?

[01:21:15] Speaker 03:
That you can get that relief against the subordinate official.

[01:21:18] Speaker 03:
Take Biden v. Nebraska.

[01:21:19] Speaker 03:
In Biden v. Nebraska, it is clearly President Biden's student loan forgiveness policy.

[01:21:23] Speaker 03:
And everyone agrees that you can get a subordinate relief against, sorry, you can get injunctive relief against the subordinate officials.

[01:21:31] Speaker 03:
And it would be extraordinary if we have this entire history and tradition dating back to Blackstone about the ability to get relief for officials and then to say that is no more.

[01:21:42] Speaker 03:
And if I could just make one more small point, if you think that some amount of Humphrey's executor remains alive,

[01:21:49] Speaker 03:
So let's say you agree that Article I courts remain alive.

[01:21:52] Speaker 03:
And I do think we're like an Article I court.

[01:21:53] Speaker 03:
Or you think the Fed remains independent and different because you don't think it's making ad hoc exceptions.

[01:22:00] Speaker 03:
I do think it is making ad hoc exceptions.

[01:22:02] Speaker 03:
Let's say you don't, Judge Katz.

[01:22:04] Speaker 03:
And you think there's really a special tradition for the Fed.

[01:22:06] Speaker 03:
If you rule on remedy, you will make it impossible to enforce those laws.

[01:22:12] Speaker 03:
Because if there is no remedy, then the for-cause removal statutes that Congress passed mean nothing.

[01:22:16] Speaker 03:
So if the Fed is protected, Judge Pam,

[01:22:18] Speaker 03:
And let's say there is a special exception for the Fed.

[01:22:21] Speaker 03:
All the president would have to do is fire Jerome Powell and a court couldn't do anything other than cut a cashier's check and award him back pay, even though it's unlawful.

[01:22:30] Speaker 03:
That result can't be right.

[01:22:33] Speaker 03:
It proves too much.

[01:22:36] Speaker 06:
If there... So, sorry, just once more.

[01:22:40] Speaker 06:
Would the president be defying this order if he were to nominate?

[01:22:48] Speaker 03:
I don't think he is technically defying this order any more so.

[01:22:51] Speaker 06:
Nor would the Senate be defying the order.

[01:22:54] Speaker 03:
No, that would then be a circumstance to pick up Judge Walker's point.

[01:22:58] Speaker 03:
That would be the circumstance in which you would then seek rid of Coralento if necessary.

[01:23:03] Speaker 03:
So now I do think that, again, we're not there because we don't have a

[01:23:10] Speaker 03:
We don't have a circumstance where there's a usurper, and so that's why Quarrento is not appropriate.

[01:23:14] Speaker 03:
I agree with my friend on the other side on that.

[01:23:16] Speaker 03:
But Judge Casas, I think you could make the same arguments about Youngstown.

[01:23:20] Speaker 03:
Because in Youngstown, the president's point was, I have the inherent article to authority to seize the seal mills.

[01:23:25] Speaker 03:
So you could say, OK, well, he doesn't have to go to the secretary of commerce.

[01:23:29] Speaker 03:
He can go to somebody else and say, you seize the steel mills.

[01:23:33] Speaker 03:
And that person's not bound by the injunction nor is the president.

[01:23:35] Speaker 03:
The president doesn't do that because part of faithfully executing the law as part of that oath is when the court has ruled not to try and court a crisis by saying, well, I'm not formally bound by the injunction.

[01:23:48] Speaker 06:
post-Youngstown that president would be stopped in his tracks through the presidential effect of the Supreme Court decision, the secretary of interior or defense or whoever it is would get enjoined in a second.

[01:24:07] Speaker 06:
And I think that's not true.

[01:24:08] Speaker 06:
A district court injunction that doesn't run against the president doesn't.

[01:24:13] Speaker 03:
But so I think the presidential effect here, right, if this court rules and, you know, that would then be presidential, right, you could immediately go if let's say it's core rentals or remedy, you would immediately go to the.

[01:24:24] Speaker 03:
district court.

[01:24:26] Speaker 03:
And the exact same thing would happen, right?

[01:24:27] Speaker 03:
You get the Quora Rento against the potential usurper.

[01:24:29] Speaker 03:
So I think the same result attends there, Judge Katz.

[01:24:32] Speaker 03:
I agree with you that when it's at the district court, it's a little more complicated about enforcement.

[01:24:38] Speaker 03:
I know that some folks upstairs were having a conversation the other day about that, right?

[01:24:43] Speaker 03:
And redressability law has changed on whether you assume that the government actually obey a district

[01:24:54] Speaker 03:
So I actually think Franklin supports us, because even Justice Scalia noted that in the vast majority of cases, you're going to seek relief against the subordinate official.

[01:25:03] Speaker 03:
And so Justice Scalia did that.

[01:25:04] Speaker 06:
But Keene comes out the other way.

[01:25:06] Speaker 06:
But never mind.

[01:25:09] Speaker 06:
Anything else?

[01:25:11] Speaker 03:
Thank you.

[01:25:12] Speaker 03:
No, I guess in the very brief moment that I have left, I just point out that I do think if this agency is unconstitutional, then Judge Pan, we completely agree.

[01:25:20] Speaker 03:
The Fed is not constitutional.

[01:25:21] Speaker 03:
I don't think Article I courts are going to be constitutional.

[01:25:23] Speaker 03:
I don't think any other independent agency in the federal government, the only one my friend can point to is the Administrative Constituency of the United States.

[01:25:29] Speaker 03:
We would urge you not to radically disrupt the nature of American government and affirm.

[01:25:33] Speaker 03:
Thank you.

[01:25:34] Speaker 03:
Thank you.

[01:25:42] Speaker 04:
Good morning.

[01:25:42] Speaker 04:
Chief Gupta.

[01:25:44] Speaker 04:
Chief, Judge Katz, Assembly and Police, the Court.

[01:25:47] Speaker 04:
Chief, thanks.

[01:25:50] Speaker 04:
So before we get, as I'm sure we're going to, into the nitty gritty on the NLRB, I'll just say at the outset, I think that this appeal should be governed by precedent and by stare decisis, yes, but also by settled and unquestioned historical practice between the branches that takes on special significance in separation of powers cases.

[01:26:11] Speaker 04:
And for a century, at least our constitutional framework has recognized Congress's authority to create independent multi-member bodies whose members are protected from at-will removal, especially for adjudicatory bodies like the NLRB and especially the post-1947 NLRB.

[01:26:29] Speaker 04:
that understanding has been woven into the fabric of our government structure.

[01:26:34] Speaker 04:
And it is no small thing to change that structure.

[01:26:37] Speaker 04:
And I think members of this panel during the government's argument tried to probe the government's position about what the boundaries of its position was.

[01:26:47] Speaker 04:
And I think it was remarkable that the Department of Justice has come into court and does not have answers to questions that

[01:26:56] Speaker 04:
you obviously were going to ask about whether adopting the government's, I think it's safe to say, extreme position in this appeal will call into question institutional structures that have been unquestioned for a century or more, including the Federal Reserve Board, including the Article I courts that are also adjudicatory bodies like the NLRB.

[01:27:18] Speaker 04:
And I think that illustrates the wisdom of the Supreme Court's decision

[01:27:23] Speaker 04:
in free enterprise, in SELA law, and in Collins, not to revisit or to overturn Humphreys or Wiener, despite repeated requests to do so.

[01:27:36] Speaker 06:
Let me take you into the itty-gritty of powers that might be executive.

[01:27:41] Speaker 06:
So rulemaking.

[01:27:43] Speaker 06:
Right.

[01:27:45] Speaker 06:
Not mentioned in Humphreys, and therefore, under SELA, something we can consider.

[01:27:53] Speaker 04:
Well, so I do think, as you said, Judge Katzis earlier in a colloquy with my friend, Humphreys does mention that the 1935 FTC had this ability to fill in gaps and administer the unfair.

[01:28:09] Speaker 04:
In the context of adjudication of Section 5 complaints.

[01:28:13] Speaker 06:
That's right.

[01:28:14] Speaker 06:
in the context of section six, which is where the rulemaking grant is.

[01:28:20] Speaker 06:
The only thing they talked about was these reports to Congress.

[01:28:24] Speaker 06:
It was that function that led them to say, this is in relevant part quasi-legislative.

[01:28:33] Speaker 06:
They did not talk about the substantive grant of rulemaking.

[01:28:38] Speaker 04:
Yeah, I think it's unclear.

[01:28:40] Speaker 04:
It's a very short opinion.

[01:28:41] Speaker 04:
And I think you're right that it does not specifically call out that delegation of rulemaking authority.

[01:28:47] Speaker 04:
But I do think it's notable that the NLRB created in 1935, two months after Humphrey's executor, the organic statute was modeled on the statute that the Supreme Court had just sustained.

[01:28:59] Speaker 04:
in Humphrey's executor.

[01:29:00] Speaker 04:
But I would also just emphasize that in 1947, in the National Labor Relations Act, Congress went in and restructured the NLRB.

[01:29:10] Speaker 06:
And it separated out the... That helps you on how you think of what would otherwise be combining of prosecution and adjudicatory functions.

[01:29:22] Speaker 04:
Right.

[01:29:22] Speaker 06:
Well, I think it also... It doesn't address this ruling.

[01:29:26] Speaker 04:
I think it helps us a little bit on this point only in the sense that by 1947 it had become clear that the NLRB was exercising its functions as an adjudicatory body.

[01:29:37] Speaker 04:
Congress understood that there was no substantive rulemaking going on at the NLRB.

[01:29:41] Speaker 04:
And as Judge Millett said in her opinion, the NLRB's

[01:29:44] Speaker 04:
rulemaking power is circumscribed.

[01:29:47] Speaker 04:
So the delegation is 29 USC 156, and it says that the agency can make such rules or regulations as may be necessary to carry out the provisions of the act.

[01:29:58] Speaker 06:
But the way that they can define by substantive rule what counts as an unfair labor practice.

[01:30:04] Speaker 04:
Well, it is true that

[01:30:07] Speaker 04:
the agency can do that.

[01:30:08] Speaker 04:
As a matter of historical fact, what the agency has done is basically two things that have been sustained by the courts.

[01:30:16] Speaker 04:
One is to adopt rules of procedure or practice.

[01:30:19] Speaker 04:
We have to look at the powers, not what they affect.

[01:30:22] Speaker 04:
Well, I think because this is a separation of powers case and because the historical practice matters, especially

[01:30:28] Speaker 04:
historical practice that Congress has acquiesced in.

[01:30:31] Speaker 04:
I think it does matter that the agency hasn't, this is not an agency that has been doing lots of substantive rulemaking and carrying out its powers in the way that the court has described as executive.

[01:30:45] Speaker 04:
But I also think it's important to understand that

[01:30:48] Speaker 04:
Aside from rules of practice or procedure, which are, you know, the kinds of rules that a court issues, right?

[01:30:53] Speaker 06:
So you should have a substantive, right?

[01:30:56] Speaker 04:
So, so the power to interpret the NLRRA, right?

[01:31:01] Speaker 06:
But especially after LOPR interpret or pass legislative rules.

[01:31:08] Speaker 06:
Well, I don't LOPR complicates the interpretive authority question.

[01:31:13] Speaker 04:
Yeah, I mean, I think, especially after Lope or Bright, it's clear, and other decisions by not just the Supreme Court, but the lower courts that have clarified the NLRB's authority, that the NLRB has the authority basically to give the agency's view on statutory language.

[01:31:30] Speaker 04:
And I think

[01:31:31] Speaker 04:
What it has done in the very few instances in which it is actually promulgated rules that aren't rules of practice or procedure is essentially to distill the things that it does through adjudication.

[01:31:43] Speaker 04:
So the Supreme Court considered this in the American Hospital Association case.

[01:31:47] Speaker 04:
What the rule that the agency put out there that was sustained by the Supreme Court

[01:31:52] Speaker 04:
essentially condensed and harmonized dozens of inconsistent decisions by the board about hospital bargaining units.

[01:32:00] Speaker 04:
And that rule, by definition, I think would be considered interpretive, and especially after Lope or Bright, subject to de novo judicial review.

[01:32:11] Speaker 06:
But we get a lot of NLRB cases.

[01:32:16] Speaker ?:
Right.

[01:32:17] Speaker 06:
And here's how the opinions run.

[01:32:20] Speaker 06:
least until Loper.

[01:32:21] Speaker 06:
Here's how every opinion goes.

[01:32:24] Speaker 06:
First thing we say, the board has the authority to set national labor policy.

[01:32:30] Speaker 06:
C. Curtis Matheson, right?

[01:32:33] Speaker 06:
Second thing we say is we exercise, we give the board a high degree of deference.

[01:32:39] Speaker 06:
I think that, right?

[01:32:40] Speaker 06:
And sometimes we invoked Chevron and sometimes we invoked State Farm.

[01:32:46] Speaker 04:
Yeah, I mean, to the extent that was true.

[01:32:51] Speaker 06:
on Mennoneta was one, five or six flip flops back and forth.

[01:32:58] Speaker 06:
And every time that happens, we say, fine, we don't even talk about the statute.

[01:33:03] Speaker 06:
We just say, they're implementing national labor policy.

[01:33:08] Speaker 06:
We give a quick review of their reasoning under State Farm, and we say, great.

[01:33:14] Speaker 06:
That's how it works.

[01:33:16] Speaker 06:
Now, you think post-Loper bright

[01:33:21] Speaker 07:
when the agency issues.

[01:33:48] Speaker 06:
under Loper.

[01:33:49] Speaker 06:
So we're just going to tell you what the right answer is.

[01:33:52] Speaker 06:
I don't think that's how it's going to work.

[01:33:54] Speaker 04:
Well, I think that I mean, I think Loper makes clear it's the judiciary has the ability to say what the law is.

[01:33:59] Speaker 04:
And I think it would be not just it would be it would be the duty of an Article three court if it thinks that the NLRB has gotten the wrong the law wrong to say the law is X. And I think it's not define the bounds of permissible discretion.

[01:34:14] Speaker 06:
And Loper says when you have a term like unfair,

[01:34:19] Speaker 06:
there are a range of things there in the.

[01:34:33] Speaker 04:
All three court in reviewing the work product of the NLRB.

[01:34:38] Speaker 04:
And these are adjudicators.

[01:34:39] Speaker 04:
They sit in panels of three

[01:34:41] Speaker 04:
They function like appellate judges.

[01:34:43] Speaker 04:
They read the record.

[01:34:44] Speaker 04:
They hear oral argument.

[01:34:45] Speaker 04:
They reach reasoned decisions that are reviewable.

[01:34:48] Speaker 04:
Article III courts is not different from what courts do when they are reviewing the product of other specialized adjudicatory bodies, whether we call them courts or not, like the tax court, like the Armed Forces Court, like the Veterans Affairs Court.

[01:36:36] Speaker 04:
most of those quintessential multimonitor bodies actually have much more robust rulemaking power than the NLRB.

[01:36:43] Speaker 04:
The NLRB is at the far end of the spectrum, right?

[01:36:46] Speaker 04:
And I think that the opinions in free enterprise and in sale of law in particular in Collins would be very different if what the court was saying is

[01:36:54] Speaker 04:
You know, any time there's regulation, the power to issue regulations, even if it's as minimal and as infrequently exercised as here, that means you're on the wrong side of the line.

[01:37:05] Speaker 04:
Those opinions would be very different.

[01:37:09] Speaker 06:
Two more questions on specific powers, litigating authority.

[01:37:14] Speaker 06:
So this is where I think... There's a weird scheme on

[01:37:20] Speaker 06:
how the board does or doesn't control the general counsel.

[01:37:26] Speaker 06:
So one point, one hard point for you pre-1947 would have been the prosecuting authority before the agency, and Congress took care of that.

[01:37:38] Speaker 06:
The board does that.

[01:37:39] Speaker 06:
That's right.

[01:37:40] Speaker 06:
Unreviewable, so that does not count against the board.

[01:37:46] Speaker 04:
Yeah, I mean, not only does it not count against the board, it makes this

[01:37:50] Speaker 04:
it makes this an easy case because Congress went in and took the executive or prosecutorial functions and placed them all under somebody who serves at the pleasure of the president.

[01:38:01] Speaker 06:
How does how does the bifurcated structure work when the agency has to go to court?

[01:38:11] Speaker 06:
Yeah, so general counsel that does it correct, but

[01:38:15] Speaker 06:
Your colleagues have cited this 1955 Federal Register memo, which seems to say that in court, the general counsel acts at the direction of the

[01:38:31] Speaker 04:
Yeah, it's not.

[01:38:33] Speaker 04:
And I'm glad to have the opportunity to address this, Judge Katz.

[01:38:36] Speaker 04:
So I think first I would look, I would start with the statute and that's 29 USC 153 D. It makes it very clear that the general counsel shall have final authority.

[01:38:48] Speaker 04:
I'm over the administrator over the investigation charges in the issuance of complaints in the prosecution of such complaints before the board.

[01:38:56] Speaker 06:
That's all right for the board.

[01:38:58] Speaker 04:
So right.

[01:39:00] Speaker 04:
What happens and the Supreme Court has said those prosecutorial decisions are not reviewable.

[01:39:05] Speaker 06:
They're independent of spotting you all.

[01:39:07] Speaker 04:
So right.

[01:39:07] Speaker 06:
So the prosecuting before the board.

[01:39:09] Speaker 04:
Okay.

[01:39:10] Speaker 04:
So this is just the table setting.

[01:39:13] Speaker 04:
So the citation to this 1955 Federal Register notice, which is one page long and from 1955, it doesn't contradict the statute.

[01:39:24] Speaker 04:
The Federal Register notice says that the GC has full and final authority and responsibility over, quote, case handling, which includes the authority to accept and investigate charges filed, to issue complaints, to prosecute complaints,

[01:39:40] Speaker 04:
to enter into and approve the informal settlement of charges and to dismiss charges.

[01:39:45] Speaker 04:
And so no case can even come before the board unless the general counsel chooses to take those steps.

[01:39:52] Speaker 04:
Even if the president appoints a new general counsel while a prosecution is already ongoing, the general counsel would have the full and final authority to settle or dismiss that case.

[01:40:02] Speaker 04:
And the government's brief doesn't claim otherwise.

[01:40:04] Speaker 04:
What the government is saying

[01:40:06] Speaker 04:
is that the GC acts as they put it in accordance with the directions of the board when the GC conducts litigation in federal.

[01:40:13] Speaker 06:
No question the GC has a kill switch.

[01:40:16] Speaker 06:
Kill switch.

[01:40:17] Speaker 06:
On the front end.

[01:40:17] Speaker 04:
On the front end but also on the back end because the general counsel is the one that supervises all of the attorneys.

[01:40:26] Speaker 04:
So if you think about the NLRB, Congress actually decided, they thought about making it into two agencies, they decided

[01:40:33] Speaker 04:
to call all of it the National Labor Relations Board.

[01:40:35] Speaker 04:
And I think that's part of the confusion because sometimes the board refers to the board members and sometimes refers to the agency.

[01:40:41] Speaker 04:
But all of those attorneys, all of the people that go into court, everyone other than the people that are basically like the law clerks to the appellate judges, all of those people are under the direction of the general counsel who serves at the pleasure of the president.

[01:40:56] Speaker 06:
Suppose the board as prosecutor

[01:41:01] Speaker 06:
brings a case administratively and the NLRB finds no unfair labor practice.

[01:41:12] Speaker 06:
The board is angry.

[01:41:15] Speaker 06:
The aggrieved party, whether it's the union or the employer, files a PFR.

[01:41:22] Speaker 06:
Can the board lawfully refuse to defend?

[01:41:26] Speaker 06:
Well, it would be the general counsel.

[01:41:28] Speaker 06:
I'm sorry.

[01:41:28] Speaker 06:
I'm sorry.

[01:41:29] Speaker 06:
Can the general counsel lawfully refuse to defend?

[01:41:32] Speaker 04:
Yeah, I mean, you can you can ask the government's position, but I think the government has taken the position that the general counsel has plenary authority and actually the new general counsel that was named by President Trump.

[01:41:43] Speaker 04:
He regards his role as being the head of an executive agency and having plenary authority.

[01:41:49] Speaker 06:
We're at the 1955 federal register thing is inconsistent with that.

[01:41:56] Speaker 04:
I don't, I don't, yeah, I don't read it that way.

[01:41:59] Speaker 04:
And I think, I think the statute would Trump, right?

[01:42:02] Speaker 04:
And so I would start with the statute and the statute says, and the way that the Supreme Court has interpreted the statute.

[01:42:07] Speaker 04:
is that what Congress was doing was affecting an internal separation of powers.

[01:42:13] Speaker 04:
And so the NLRB acting as a multi-member body is the appellate court, and the general counsel is the executive officer, the prosecution, and makes the final and unrevealable decisions about what to prosecute and how to litigate and how to handle cases.

[01:42:32] Speaker 04:
And so I think that actually makes this a much easier case than it would have been if you had the NLRB between 1935 and 1947.

[01:42:41] Speaker 04:
I think we would still win under that because Congress was modeling the agency on the 1935 NLRB.

[01:42:47] Speaker 06:
Last question I have on powers is the board's control over elections seems to be

[01:42:57] Speaker 06:
Less in this split model of adjudication by one entity prosecution on another.

[01:43:03] Speaker 06:
It seems like the board is vested with investigatory power.

[01:43:07] Speaker 06:
It's invested.

[01:43:09] Speaker 06:
It's told to generally supervise elections.

[01:43:14] Speaker 06:
It has rulemaking authority with regard to elections.

[01:43:17] Speaker 06:
That looks like

[01:43:20] Speaker 06:
investigation and adjudication and supervision and execution all bound up into one set of things.

[01:43:26] Speaker 04:
So my understanding of the way this works is that the regional directors are the ones who handle all of that election administration and those regional directors report to the general counsel.

[01:43:38] Speaker 04:
This is made clear in the statute.

[01:43:39] Speaker 04:
Again, the only people

[01:43:42] Speaker 04:
that are not reporting to the general counsel are the people who are equivalent to the law clerks, to the appellate judges, the board members.

[01:43:52] Speaker 04:
And so I heard my friend refer to the election administration.

[01:43:55] Speaker 04:
I think that's just not right.

[01:43:56] Speaker 04:
That falls on the executive side of the line.

[01:44:00] Speaker 01:
So I wonder if one way we could resolve this case is just to follow the reasoning of Judge Willett in the Fifth Circuit case, consumers research versus the Consumer Product Safety Commission.

[01:44:12] Speaker 01:
because it seems that that court was grappling with the same issues that we are grappling with.

[01:44:16] Speaker 01:
And as Judge Cassis put it, the reasoning goes one way, but they left Humphrey's executor in place.

[01:44:23] Speaker 01:
And what Judge Ouellette did was he concluded that the commission exercises substantial executive power.

[01:44:29] Speaker 01:
And that commission does seem to have more executive power than either the NLRB or the MSB.

[01:44:35] Speaker 04:
I agree.

[01:44:36] Speaker 01:
And then he said, nevertheless, because Humphrey's

[01:44:39] Speaker 01:
is still good law according to the Supreme Court.

[01:44:42] Speaker 01:
He had three reasons why he upheld the four-cause removal restrictions in that case.

[01:44:51] Speaker 01:
The first was that it does not require us to confront a historically unprecedented situation, which is true here, because CILA law really was unusual with a single head, et cetera.

[01:45:03] Speaker 01:
And the second, the commission does not share the defining feature, which was the single head versus the multi-head.

[01:45:08] Speaker 01:
And then third, the commission does not have any of the features that combine to make the CFPB structure even more problematic, which is the financing of the agency being not even through the normal appropriations process.

[01:45:20] Speaker 01:
It seems to me that this is a roadmap for how we could resolve this case.

[01:45:25] Speaker 04:
Yes.

[01:45:26] Speaker 04:
I think that's right.

[01:45:27] Speaker 04:
And I think that's probably the narrowest possible way to do that.

[01:45:30] Speaker 04:
And I think I would just point out also that that approach was sustained by the en banc Fifth Circuit.

[01:45:35] Speaker 04:
So you have the Tenth Circuit, the Fifth Circuit,

[01:45:38] Speaker 04:
this court sitting on bank, and what they've all said is the same thing, which is a recognition that there's an effort to probe the outer boundaries of the existing precedent, to overturn it, really.

[01:45:51] Speaker 04:
But the right thing for subordinate appellate courts to do is to adhere to that precedent and leave for the Supreme Court the prerogative to overrule the precedent.

[01:46:02] Speaker 01:
I like his observation that we're middle management circuit judges and these big questions are really for the Supreme Court.

[01:46:09] Speaker 01:
So in the meantime, we just take this narrow approach.

[01:46:12] Speaker 04:
I think that is the best course here.

[01:46:14] Speaker 04:
And I think, look, they have already gone to the Supreme Court.

[01:46:17] Speaker 04:
The Supreme Court has administratively stayed the case.

[01:46:21] Speaker 04:
It didn't immediately grant the stay that the government asked for, nor did it set the case immediately for argument, as the government asked.

[01:46:29] Speaker 04:
And so I think the prudent course here and the course that doesn't open up the Pandora's box that we heard about in the government's argument

[01:46:38] Speaker 04:
would be to do something like that and to leave for the Supreme Court the prerogative to overturn its own precedent.

[01:46:45] Speaker 05:
Thank you.

[01:46:46] Speaker 05:
There is no doubt that we are middle management, and there is no doubt that we cannot overturn a Supreme Court precedent.

[01:46:52] Speaker 05:
Do you agree that sometimes the court, without overruling its precedent, will limit its precedent?

[01:46:59] Speaker 05:
Oh, yes, of course.

[01:47:00] Speaker 05:
OK.

[01:47:00] Speaker 05:
Do you think that we would decide a Bivens case the same today as we would before Egbert v. Bull?

[01:47:07] Speaker 04:
No, and actually, I just read Egbert yesterday, Judge Walker, because I thought you might ask about this.

[01:47:12] Speaker 04:
And I think it's actually a really good contrast.

[01:47:15] Speaker 04:
Because in this situation, the Supreme Court has said, we're not revisiting that precedent.

[01:47:23] Speaker 04:
In Bivens, the court has gone out of its way to criticize the precedent to say that we would never decide this that way.

[01:47:32] Speaker 04:
And it's hanging by a thread.

[01:47:35] Speaker 04:
You don't think there was criticism of Humphreys and Selah?

[01:47:39] Speaker 04:
No.

[01:47:40] Speaker 05:
Collins?

[01:47:40] Speaker 04:
I don't read the court as, I think when they say we're not revisiting the precedent, I think that means we're not revisiting the precedent.

[01:47:47] Speaker 05:
Egbert did not overrule Bivens.

[01:47:51] Speaker 04:
It did not formally overrule Bivens.

[01:47:54] Speaker 05:
And if we had a case that was on all four with Bivens today, we would have decided

[01:48:00] Speaker 05:
We would allow cause of action.

[01:48:01] Speaker 04:
Right.

[01:48:02] Speaker 05:
Right.

[01:48:02] Speaker 05:
But we've been told not to expand it at all.

[01:48:06] Speaker 05:
Right.

[01:48:06] Speaker 05:
Right.

[01:48:07] Speaker 05:
Do you think we would decide a Kirin case, next part a Kirin case the same way today?

[01:48:12] Speaker 05:
as we would have the year after Kieran was decided?

[01:48:14] Speaker 04:
No, and Judge Walker.

[01:48:16] Speaker 05:
What about Johnson v. Eisensteiger before Bumedi?

[01:48:18] Speaker 04:
No, and Judge Walker, I'm not asking you to decide this case the way you would in 1936.

[01:48:26] Speaker 04:
You and I talked about this in the state hearing.

[01:48:28] Speaker 04:
I mean, I think we actually, we agree on a lot.

[01:48:30] Speaker 04:
I think we agree that the task before this court is to decide based on all of the Supreme Court's precedents.

[01:48:38] Speaker 05:
How broadly to read

[01:48:41] Speaker 04:
Yeah, but I guess where we disagree is I think that the Supreme Court very consciously, in free enterprise and sale of law in Collins, meant what it said that wasn't revisiting the precedent.

[01:48:52] Speaker 04:
And it could have written the opinion very differently, but it contrasted this historically well-settled category against the novel features of the agencies with which it was presented.

[01:49:03] Speaker 05:
And I agree with what you just said about our area of agreement.

[01:49:09] Speaker 05:
Right.

[01:49:11] Speaker 05:
I'm not sure everyone does.

[01:49:14] Speaker 05:
So I take your, I think something of a, I'm not going to call it a concession, but statement that is consistent with some things I tried to say in an opinion that went against you last time.

[01:49:29] Speaker 05:
Overruling Humphreys is not on the table.

[01:49:33] Speaker 05:
And it's a complete straw man to say something like,

[01:49:38] Speaker 05:
The Supreme Court has repeatedly told the Courts of Appeal to follow extant Supreme Court precedent unless and until that court itself changes it or overturns it.

[01:49:47] Speaker 05:
We know it hasn't been overturned, and we know it has been changed.

[01:49:50] Speaker 05:
And the question is, how much has it been changed?

[01:49:53] Speaker 05:
Is that correct?

[01:49:54] Speaker 04:
I mean, I think, look, I don't want to retract my agreement with you.

[01:49:59] Speaker 05:
I wasn't pulling you.

[01:50:01] Speaker 04:
I was pulling her.

[01:50:01] Speaker 04:
But I think that I'm just saying what the en banc court said, which is that the en banc court emphasized that it's the prerogative of the Supreme Court to decide when to overturn the precedent.

[01:50:11] Speaker 05:
That's not debatable.

[01:50:13] Speaker 05:
We all agree on that.

[01:50:15] Speaker 04:
Right.

[01:50:16] Speaker 05:
I think that's right.

[01:50:16] Speaker 05:
And the question is, has the Supreme Court changed Humphreys without overruling?

[01:50:23] Speaker 04:
That is not what the Supreme Court said it was doing.

[01:50:26] Speaker 04:
And it was invited to do so.

[01:50:28] Speaker 04:
And there were dissenters.

[01:50:29] Speaker 04:
There were two dissenters who would have done so.

[01:50:31] Speaker 04:
And so I think the Supreme Court knows what it's doing.

[01:50:35] Speaker 04:
When it says we are not revisiting the precedent, it's not revisiting the precedent.

[01:50:40] Speaker 04:
And it has the opportunity to do so.

[01:50:42] Speaker 04:
And I think there are plenty of vehicles that are now being provided to the court.

[01:50:46] Speaker 05:
So your argument is we should read Humphrey's as broadly as it would have been read.

[01:50:51] Speaker 04:
No, no, I don't think so at all.

[01:50:53] Speaker 04:
I think so.

[01:50:54] Speaker 05:
So I understand you read it more narrowly than the day after.

[01:50:59] Speaker 04:
No, I think I understand SELA law to have identified what it called certain organizational features that I think it thought were important to the decision in Humphreys.

[01:51:11] Speaker 04:
And it called out the fact that the agency had five members.

[01:51:15] Speaker 04:
that it was an agency that was supposed to do its job with impartiality, that it had duties that called for the trained judgment of a body of experts, that they had staggered terms.

[01:51:26] Speaker 05:
And I appreciate it.

[01:51:28] Speaker 05:
And the brief is, not surprisingly, a terrifically written brief.

[01:51:34] Speaker 05:
I understand the points.

[01:51:36] Speaker 05:
And again, I think we probably agree on this.

[01:51:40] Speaker 05:
then for a second ago, it sounded like maybe you were taking back the agreement.

[01:51:44] Speaker 05:
We can either read Humphrey's more broadly than the day after it was decided.

[01:51:51] Speaker 05:
We could read it as broadly as the day after it was decided, or we could read it more narrowly than the day after it was decided.

[01:51:59] Speaker 05:
Which of those do you think is the option the Supreme Court has left?

[01:52:03] Speaker 04:
I think what the Supreme Court has said is we're not revisiting that precedent.

[01:52:07] Speaker 04:
I think that it was contrasting.

[01:52:10] Speaker 04:
I mean, the very first line of say, Lola, right?

[01:52:13] Speaker 04:
It's, you know, it, it contrasts the CFPB says Congress in creating this agent's question one more time.

[01:52:20] Speaker 05:
Cause I don't think you're answering it.

[01:52:22] Speaker 05:
And maybe I can't make you, but do you think we should read Humphreys as broadly as the day after it was decided?

[01:52:33] Speaker 04:
I would say.

[01:52:34] Speaker 04:
Judge Walker, that I don't think these two cases present that question because even if you take your view from your opinion, which is that the only thing that's left is what you called the identical twin of the 1935 FTC, I think this agency, it doesn't even have the ability to investigate on its own because Congress went in

[01:52:59] Speaker 04:
and effected this internal separation of powers, I think we should win even on that view.

[01:53:03] Speaker 04:
I disagree with you on that view, but I think we should win even on that view.

[01:53:06] Speaker 05:
And I appreciate that.

[01:53:09] Speaker 05:
I was surprised a little to hear how you, speaking for the NLRB, think we should review NLRB decisions going forward.

[01:53:21] Speaker 04:
Oh, well, I'm not speaking.

[01:53:23] Speaker 05:
Maybe pleasantly surprised?

[01:53:24] Speaker 04:
I don't know that I'm speaking for the NLRB.

[01:53:28] Speaker 04:
But I do think Loper-Brite affects a seat change.

[01:53:33] Speaker 04:
And I do think it, I read it as telling, making clear that Article 3 judges are the ones who say what the law is.

[01:53:40] Speaker 05:
Ms.

[01:53:40] Speaker 05:
Wilcox is here in her official capacity.

[01:53:42] Speaker 05:
Is that right?

[01:53:43] Speaker 04:
No.

[01:53:45] Speaker 04:
Our complaint doesn't say, but I think you can read it that way.

[01:53:48] Speaker 04:
You represent this one.

[01:53:49] Speaker 04:
I'm not speaking for the NLRB, but I'm not sure that it would make any difference if I were.

[01:53:54] Speaker 04:
It's de novo review.

[01:53:59] Speaker 04:
It's de novo review on the law.

[01:54:01] Speaker 05:
If I were to read you the standard of review section, it's only two paragraphs, from an NLRB brief filed on April 30, 2024.

[01:54:12] Speaker 05:
And if I were to read you a two paragraph standard of review section from an NLRB brief filed on April 30,

[01:54:19] Speaker 05:
exactly a year later, in 2025.

[01:54:23] Speaker 05:
And I do have them.

[01:54:24] Speaker 04:
Yeah.

[01:54:26] Speaker 05:
Do you think you would tell the difference with Loper having happened in between?

[01:54:30] Speaker 04:
I don't know the answer to that question.

[01:54:32] Speaker 04:
You wouldn't want to play that game, right?

[01:54:34] Speaker 04:
I don't want to play the game.

[01:54:35] Speaker 04:
And I'm not sure that it has constitutional significance at the end of the day.

[01:54:38] Speaker 04:
I mean, there are.

[01:54:39] Speaker 05:
I mean, you and Judge Katz's, you very thoughtfully answered Judge Katz's very thoughtful questions.

[01:54:45] Speaker 05:
And the way that you answered them was by saying,

[01:54:48] Speaker 05:
Now that Loper has happened, you know, our board lost a lot of power.

[01:54:53] Speaker 05:
We're not going to get the same deferential standard of review.

[01:54:56] Speaker 05:
And I'm telling you, the reason you don't want to play this game is because you would not be able to tell the difference between the NLRB standard of review section in April 2024 and its standard review section in April 2025.

[01:55:08] Speaker 05:
Yeah.

[01:55:10] Speaker 04:
And I don't think that the Supreme Court has, to be clear, has suggested in Salo Law or in Collins or any of these cases,

[01:55:16] Speaker 04:
that the standard of review that the Article III courts use in reviewing the work of adjudicatory bodies is the deciding factor one way or another.

[01:55:25] Speaker 04:
So if I suggested otherwise, I don't want to clarify that.

[01:55:31] Speaker 06:
I mean, it might bear on how we think of adjudication.

[01:55:35] Speaker 06:
No policy but the law or the vehicle for implementing national policy.

[01:55:41] Speaker 04:
Right.

[01:55:41] Speaker 04:
And I think the best way to understand what the NLRB

[01:55:46] Speaker 04:
is doing, and I think this was true before Loper-Brite, but Loper-Brite clarifies it, is that it is sitting, just as you are right now, as multi-member bodies of appellate decision makers receiving a record of the facts and applying the law to those facts subject to the review of Article III tribunals.

[01:56:09] Speaker 06:
With no substantial policymaking in between.

[01:56:12] Speaker 04:
Correct.

[01:56:13] Speaker 05:
This is not from either of the briefs I mentioned, but this is a post-Loper-Bright and LRB brief.

[01:56:20] Speaker 05:
While overruling Chevron, however, Loper-Bright reaffirmed that Congress may enact specific statutes granting discretionary authority to agencies tasked with prescribing rules to fill up the details of the statutory scheme.

[01:56:31] Speaker 05:
When reviewing the decisions of such agencies, courts satisfy their assigned role by ensuring the agency acted within the bounds of the delegated authority and engaged in reasoned decision-making.

[01:56:40] Speaker 05:
reason decision making, as you know, highly deferential standard of review.

[01:56:45] Speaker 05:
Congress entrusted the board with the discretion to formulate rules to fill the interstices of the broad statutory provisions.

[01:56:52] Speaker 05:
Again, highly deferential.

[01:56:54] Speaker 05:
It was settled long before Chevron.

[01:56:55] Speaker 05:
The development of national labor policy is a difficult and delicate responsibility that Congress committed primarily to the board.

[01:57:02] Speaker 05:
The board's exercise of its discretion must not be irrational and must not exceed its powers or venture into the area barred by the statute.

[01:57:10] Speaker 05:
Forge rules will be upheld as long as they are rational, consistent with the statute.

[01:57:15] Speaker 05:
Loper-Brite did not alter that standard review.

[01:57:17] Speaker 05:
Do you think that's consistent with what you told Judge

[01:57:20] Speaker 04:
It doesn't sound like it.

[01:57:22] Speaker 04:
I mean, I think the government didn't brief the significance of the standard review.

[01:57:28] Speaker 04:
I'd be happy to provide a supplemental letter on this point.

[01:57:32] Speaker 04:
But I think the main point is I don't think that the Supreme Court has said that Article III review of adjudicatory bodies and the standard review is constitutionally dispositive.

[01:57:43] Speaker 04:
And I think I would leave for the Supreme Court the answer to that question.

[01:57:48] Speaker 06:
Is there anything you want to say about remedies?

[01:57:51] Speaker 04:
I don't have much to add to what my colleague already said.

[01:57:55] Speaker 04:
I would just say that I think Judge Rao mentioned that Swan and Severino were not binding on the Anban Court.

[01:58:03] Speaker 04:
I do think they are binding on this panel.

[01:58:05] Speaker 04:
And I think they light the way.

[01:58:07] Speaker 04:
And I think if you make it easier, the job for this panel, which is there's already a holding, there's already analysis about the power.

[01:58:15] Speaker 04:
Those are redressability holdings, but they're about the power of the federal court.

[01:58:19] Speaker 04:
and I think they're on all fours.

[01:58:22] Speaker 05:
Mr. Graver said to go fast.

[01:58:23] Speaker 05:
Mr. Zelinski said to go fast.

[01:58:25] Speaker 05:
Do you agree with them?

[01:58:26] Speaker 05:
I do.

[01:58:27] Speaker 04:
For all the same reasons.

[01:58:31] Speaker 04:
Thank you.

[01:58:31] Speaker 06:
Thank you, Council.

[01:58:40] Speaker 06:
Mr. Graver.

[01:58:42] Speaker 02:
Just a handful of points.

[01:58:43] Speaker 02:
The first and maybe most fundamental

[01:58:45] Speaker 02:
is that I think at the essence of my friend's argument on the merits is asking this court to go down the road that Collins was clear you should not.

[01:58:53] Speaker 02:
Federal courts are no longer in the business of fine parsing statutes and powers to see how much of the president's important powers can he bear losing.

[01:59:02] Speaker 02:
The question, again, I agree.

[01:59:04] Speaker 02:
No, they say they're not going to revisit precedent, but the Supreme Court told you exactly how to read it.

[01:59:09] Speaker 02:
And it says, once you cross the line into substantial executive power, at will removal is the constitutional rule.

[01:59:17] Speaker 01:
And the way in which you- Could you address the Fifth Circuit opinion?

[01:59:20] Speaker 01:
Why is Judge Willett wrong?

[01:59:22] Speaker 02:
I think Judge Willett is wrong because the key, the opinion rose and fall essentially on the idea that structure and composition alone is enough.

[01:59:32] Speaker 02:
that so long as it's multi-member, so long as it goes through the trappings of adjudication, that is sufficient.

[01:59:38] Speaker 02:
And our view is that it's necessary but not sufficient, because Celia Law said it's necessary but not sufficient.

[01:59:47] Speaker 01:
This is above my pay grade.

[01:59:49] Speaker 01:
If the Supreme Court wants to explain what it meant, because there's some contradictory things in here, let's let them do it.

[01:59:55] Speaker 01:
In the meantime, here are the key things.

[01:59:57] Speaker 01:
They did explicitly leave Humphreys in place.

[02:00:00] Speaker 01:
And here are the three key things.

[02:00:02] Speaker 01:
We're just going to leave it in place and let the Supreme Court deal with this.

[02:00:06] Speaker 01:
That seems like what middle managers should do, no?

[02:00:09] Speaker 02:
I think I agree with the middle manager analogy, but I think if your boss said, you know, for instance, write a brief in the morning and do an argument in the afternoon, you would expect to do both things.

[02:00:18] Speaker 02:
So when your boss says it needs to be a multi-member commission and it can't exercise substantial executive power, I think you have to heed the second instruction too.

[02:00:27] Speaker 02:
And that's the key problem with the fifth circuit's decision.

[02:00:30] Speaker 06:
I think the... Can you just help me?

[02:00:33] Speaker 06:
Are you done on that?

[02:00:34] Speaker 06:
Yeah.

[02:00:35] Speaker 06:
Can you help me on the...

[02:00:39] Speaker 06:
relationship between the adjudicatory board and the general counsel vis-a-vis litigating authority and elections.

[02:00:50] Speaker 02:
Right.

[02:00:50] Speaker 06:
Two points I was discussing with.

[02:00:53] Speaker 02:
I think it's muddled.

[02:00:55] Speaker 02:
The way in which I read the statutes is the same way I think Judge Walker did in footnote 162 of his opinion, where the statute is with respect to the non ex ante, so the non front end.

[02:01:05] Speaker 02:
actions, the board calls the shots.

[02:01:07] Speaker 02:
I do think it was including in, in PFRs in court.

[02:01:11] Speaker 02:
That's my understanding.

[02:01:12] Speaker 02:
And I think though, it reveals just the fundamental problem, the kind of chaos this really leads.

[02:01:17] Speaker 06:
1955 federal register notice is still effective.

[02:01:22] Speaker 02:
That's our understanding, which is why we use it in the brief.

[02:01:25] Speaker 06:
Oddly old and informal.

[02:01:28] Speaker 06:
Well, I think that to settle something this basic.

[02:01:32] Speaker 02:
I think that if there's any theme of this case, it's going to turn on things that are oddly old and informal and what they may or may not mean.

[02:01:40] Speaker 02:
But I think it reveals a more fundamental point, which is that when you have things structured this way, when you have a board that is entrusted with developing national labor policy, building substantial power, and then you have a general counsel that might be accountable to the president, a board who is not

[02:01:56] Speaker 02:
an agency speaking out of both sides of its mouth.

[02:01:58] Speaker 02:
This is the exact blurring of the lines of accountability that the Supreme Court said should set off a three alarm fire.

[02:02:05] Speaker 02:
What about elections with supervising elections again, supervising elections.

[02:02:10] Speaker 02:
I thought that was the board, but that's my understanding too.

[02:02:14] Speaker 06:
Maybe I heard it was the general.

[02:02:16] Speaker 02:
It's a board through the regional offices.

[02:02:18] Speaker 02:
That's again, it's not something that's exclusively signed with general counsel.

[02:02:22] Speaker 02:
But again, I think the response here again and again, and the one thing I want to put on the table is, as I understand it from my friends, is their answer is don't sweat the power because it's adjudicatory in form.

[02:02:35] Speaker 02:
The answer to that, though, and again, I don't think this gets as much attention, is Arthrex.

[02:02:39] Speaker 02:
In Arthrex, you're dealing with administrative patent judges who are as judicial light as it gets.

[02:02:44] Speaker 02:
They have a panel, there's witnesses, there's evidence.

[02:02:47] Speaker 02:
It's everything but the robes.

[02:02:50] Speaker 02:
They might have the robes.

[02:02:51] Speaker 02:
But the idea there, as the Chief Justice explained, is because everyone agrees it's an executive agency and everyone agrees it's exercising executive power, even in the form of adjudication, the lines of accountability, all of those interests are implicated in full form.

[02:03:07] Speaker 02:
What matters, what matters across the board, and again, this is I think what the Fifth Circuit missed, is power.

[02:03:12] Speaker 02:
It's the ability of an agency to be consequential in the real world.

[02:03:16] Speaker 02:
That is the key litmus test.

[02:03:18] Speaker 02:
That is what sets the line.

[02:03:19] Speaker 02:
Judge Katz, as you're asking, what do we think about Humphreys?

[02:03:22] Speaker 02:
I think just one thing I would add with this is when you're looking even at a body that goes through the trappings in an adjudicatory nature, then you could look to Wiener, which the Supreme Court was very clear was not an extension of Humphreys, but an application of it.

[02:03:37] Speaker 02:
And you can ask, is the adjudicatory body before you different in kind than the War Claims Commission in Wiener?

[02:03:42] Speaker 02:
I don't think there's a serious argument that the MSPB and the NLRB are not tremendously more powerful than the War Claims Commission in Weiner.

[02:03:49] Speaker 02:
The very last thing I'll say is I'll end essentially where I started.

[02:03:52] Speaker 02:
And Judge Walker, you were picking up this point.

[02:03:55] Speaker 02:
No one is saying that Supreme Court precedent is not binding.

[02:03:58] Speaker 02:
I think this case just turns on whether it's litigated in 1935 or 2025.

[02:04:03] Speaker 02:
Under existing precedent twice over, I think it is clear that the government prevails.

[02:04:07] Speaker 02:
because the Constitution entrusts the entire executive power to the President, and agencies that wield his power in substantial form must answer to him.

[02:04:16] Speaker 06:
Thank you to all counsel for really outstanding arguments in some obviously important case.

[02:04:25] Speaker 06:
The case is submitted.